Simpson v. Hopkins

Briscoe, J., delivered the opinion of the Court. The appellee, collector of State and city taxes of Baltimore City, brought suit against the appellants to recover taxes for three years alleged to be due on certain bonds of the Consolidated Gas Company of Baltimore City, owned by the appellants. It is admitted that these bonds are secured by a mortgage upon the property of the corporation which is wholly within this State and that the company is a Maryland corporation. The facts are undisputed and submitted by an agreement of facts, in the record. It is contended by the appellee that the bonds in question are liable to taxation under the provisions of Art. 81, sec. 88 of the Code, which is as follows: “ All bonds and certificates of debt bearing interest, issued by any railroad corporation or other corporation of this State, secured by mortgage of property wholly within this State, shall be subject to assessment and taxation to the owner or owners thereof, in the same manner as like bonds or certificates of debt bearing interest and secured by mortgage of property, partly in this State and partly in some other State or States, are now subject under the laws of this State, and it shall be the duty of the county commissioners of the several counties, and the Appeal Tax Court of Baltimore City, to assess all such bonds and certificates of debt to the owner or owners thereof resident in their several counties or in the city of Baltimore, respectively.” And section 4 of the same Article of the Code makes certain exemptions from taxation by providing that the preceding sections relating to valuation and assessment shall not apply to mortgages upon property wholly within the State, nor to the mortgage debts secured thereby, nor to such portions of the shares of homestead and building associations as shall be represented by mortgages upon real or leasehold property within this — 488 — State, when such real or leasehold estate so mortgaged is subject to taxation under the laws of this State, nor to such mortgages when the real or leasehold estate so mortgaged is subject to taxation under the laws of this State. The appellants contend that the bonds in question are not liable to taxation for reasons which we will consider in their regular order: First, because section 88 of Article 8i of the Code of Public General Laws is unconstitutional and void, by reason of its being a discrimination against a special kind of property, which is forbidden by Art. 15 of the Declaration of Rights. It appears that under the statute the bonds of a corporation secured by mortgage are subject to taxation in the hands of the holders, while the debt of an individual secured by mortgage is exempt. The first question, then, is whether in this case the taxation of corporate bonds secured by mortgage is such a discrimination between the same kinds of property as to be against the rule requiring uniformity of taxation and unconstitutional under Art. 15 of the Declaration of Rights. Now it has been settled by repeated decisions of this Court that a debt, whether secured by mortgage or not, is property in the hands of the creditor liable to taxation, and that such debt when secured by mortgage may be assessed to the mortgagee while the mortgaged property may also be assessed for taxation to the mortgagor. U S. E. Pt. & L. Co. v. State, 79 Md. 72; Allen v. County Commissioners Harford County, 74 Md. 296; Mayor, &c., v. Canton Company, 63 Md. 237; Rice's case, 50 Md. 319. There can be no question, then, as to the power of the State to tax a debt of corporation secured by mortgage. And it has also been settled that Art. 15 of the Declaration of Rights constitutes no bar to the right of the Legislature to exempt certain kinds of property from taxation, when that exemption is not an arbitrary discrimination in favor of a particular class. In Buchanan v. County Commissioners of Talbot Co., 47 Md. 293, referring to the Act of 1874, ch. 483, which exempted mortgage debts from taxa — 489 — tion, this Court said: “ But it is equally evident it was not the intention to impose taxes upon every kind of debt. Express discrimination is made as to the character of the debt liable to taxation. The authority of the Legislature to make such discrimination and to exempt any species of property from taxation, according to its views of public policy, cannot be questioned. Its power to do so has been exercised from the origin of the government.” Wells v. Commissioners of Hyattsville, 77 Md. 139; Bank of Commerce v. New York, 2 Black 631. In the recent case of State v. Applegarth, 81 Md., 293 it was shown that the greatest diversity existed as to the different classes upon whom license taxes are imposed. We cannot then assent to the proposition that the taxation of the bonds of a corporation secured by mortgage, while the debt of an individual so secured is exempt, is an arbitrary discrimination against corporations or the holders of corporate securities. An individual’s true worth for the purposes of taxation consists of his real and personal property, but in the case of a corporation its franchise, its borrowing power, its earning capacity, its real worth, are not represented merely by its visible property and shares of stock. ’ The taxable value of a corporation is its bonded indebtedness together with its stock. In support of this Justice Miller, in State Tax cases, 92 U. S. 605, said: “ It is, therefore, obvious that when you have ascertained the current cash value of the whole funded debt and the current cash value of the entire number of shares, you have, by the action of those who above all others can best estimate it, ascertained the true value of the road, all its property, its capital stock and its franchises; for these are all represented by the value of its bonded debt and of the shares of its capital stock.” It is quite apparent, then, that this exemption of the mortgage debt of an individual and taxation of the mortgage bonds of a corporation in the hands of the respective creditors is not an arbitrary and unreasonable discrimination between the same classes of property. And unless the dis — 490 — crimination be arbitrary, then the wisdom of the exemption is within the discretion of the Legislature, and is not subject to control by the Courts. But it is also contended on the part of the appellants that there is no uniformity in the taxation of the mortgage debts of corporations, under Act 81 of the Code, because shares of homestead and building associations represented by mortgages on land are exempt and because the language of section 88 applies only to bonds and certificates of debt bearing interest Secured by mortgage of property wholly within this State. As to homestead associations we need only say that the character of these associations, which are not intended to be money-making corporations, is such that this exemption cannot be considered as arbitrary. So far as the alleged exemption of the bonds of foreign corporations secured by mortgages upon property wholly within the State is concerned, it is only necessary to say that should it be conceded that this class of bonds are exempt, there can be no question -that the State can relinquish its right to tax the bonds of foreign corporations without affecting its power to tax the bonds of its own corporations owned by its citizens. Nor can the alleged exemption of the bonds of a corporation, which do not bear interest, be regarded as arbitrary discrimination. The difference between a security that produces interest and one that does not, and the reasons for the taxation of the one and the exemption of the other, are both clear and obvious. The true test of a taxable value is the producing value to the owner. ' The second contention of the appellant is that the alleged discrimination in the taxation of ” the bonds is unconstitutional under the 14th Amendment of the Constitution of the U. S. Now it has been shown that the discrimination in this case is not arbitrary or hostile, but is based upon sound reasons of public policy. In the case of Bell's Gap Railroad Co. v. Pa., 134 U. S. 237, the Supreme Court said, that the .provision in the Fourteenth Amendment, that no — 491 — State shall deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a State from adjusting its system of taxation in all proper and reasonable ways; that it was not intended to compel the State to adopt an iron rule of equaltaxation. “ If that were its proper construction, it would not only supersede all those constitutional provisions and laws of some of the States, whose object is to secure equality of taxation and which are usually accompanied with qualifications deemed material, but it would render nugatory those discriminations which the best interests of society require.” And to the same effect are the cases of Pacific Ex. Co. v. Seibert, 142 U. S. 339, and Jennings v. Coal R. Imp. Co., 147 U. S. 147. It follows, then, as section 88 of Article 81 of the Code is not in conflict with the provisions of 14th Amendment of Constitution of the U. S., that this contention of the appellants cannot be maintained. We come then to the appellants’ third and last objection, and that is: “That inasmuch as section 88 of Article 81 says that such mortgage bonds as those in question in this case shall be assessed and taxed in the same manner as like bonds are under the laws of the State, where secured by mortgage of property partly within and partly without the State, and neither the Code nor the subsequent Acts of the Assembly contain a provision for the assessment and taxation of the last mentioned mortgages, therefore section 88 of Article 81 is a nullity.” Now while there is no provision in terms for the taxation of bonds secured by mortgage upon property partly within and partly without the State, yet there can be no doubt that such bonds are liable to taxation under the provisions of Art. 81, sec. 2 of the Code, which provides for the taxation of “ all bonds made or issued by any territory or corporation belonging to residents of this State, all investments in private securities of every kind and description belonging to residents of this State, and all other property of every kind, nature and description within this State.” — 492 — (Decided January 31st, 1896.) It is true that section 4 of Art. 81, which contains the exemption, declares that none of the provisions of sec. 2 shall apply to mortgages upon property wholly within this State, nor to the mortgage debt secured thereby, but the exemption was limited to the mortgage and the debt secured thereby wholly in the State, and a mortgage debt upon property only partly within the State, is not within the terms of the exemption. But if such mortgage debt is taxable, then the language of sec. 88, by which the tax upon the bonds in question is imposed, cannot be regarded as a nullity, because there is nó provision elsewhere in the law relating expressly to the taxation of the bonds of corporations secured by mortgage upon property partly within and partly without the State. Obviously these bonds are within the terms of section 2, and it is equally clear that they are not within the terms of the exemption employed in section 4. There was no error, then, in the rejection of the appellant’s prayer nor in the admission of the testimony in the appellant’s bill of exception, and for the reasons heretofore given the judgment will be affirmed. Judgment affirmed with costs.