Nashua Savings Bank v. City of Nashua

Pekley, C. J.

The land belonging to the Savings Bank and lying in Nashua was properly taxed to the bank in that town. The bank was in possession of the land with a legal title, and it was taxed in the town where it was situated. All real estate, with certain enumerated exceptions, is made liable to taxation, and the statute is express that it shall be taxed in the town or place where it is situated. Rev. Stat. ch. 39, sec. 2, and ch. 40, sec. 7.

There is an obvious reason for this general rule, which requires all real estate to be taxed where it is situated. Personal property is transitory and follows the owner; but land is stationary, and cannot be withdrawn from sharing in the public burdens of the place where it lies.

If it were taxed to the non-resident proprietors in the places where they reside, it might happen that taxable property enough would not be left where the land was situated to bear the charges of local expenditures.

Because the land belonging to the bank and situated in Nashua is taxable in that place to the bank, it by no means follows that stocks and other personal property of the bank are also taxable to the bank in Nashua where the bank is established and has its place of business. The land is taxable in Nashua, not because the bank is there, but because the land is there. If the land were not in Nashua, though it belonged to the bank, it could not be taxed in Nashua, but must be taxed in the town where it is situated. And so if it had happened that this bank had established its place of business in some other town, this land situated in Nashua, could not be taxed in the other town, where the bank was established. It thus appears that the place where the business of the bank is transacted has nothing whatever to do with the right of Nashua to tax this real estate; and I think it will be found on further inquiry that it has just as little to do with the right claimed by Nashua to tax the bank for stocks in another corporation.

This distiction between the liability of corporations to be taxed for their land and for their real estate, is established by numerous authorities. In the Boston Water Power Co. v. Boston, 9 Met. 199, it was held that the corporation were liable to be taxed for their real estate situated in that city, but not for their personal estate or income. In that case Shaw, G. J., says: "If it be said that the plaintiffs are not a manufacturing corporation, then there is no statute provision making any of their personal property liable to taxation, and the respective owners are taxable for the whole value of the personal property, and of course the corporation is not taxable. But the real estate stands upon a different footing, and must be taxed where it is situated whoever the owner is, and therefore is taxable to the corporation.” So, in the Commercial Bank v. Mumford, 4 R. I. 478, it was decided that by the law of Ehode Island banks of discount and deposit were taxable for *392 their real estate in the towns where it was situated, but not for their personal estate in the towns where the banks were established, and the same rule was applied to the case of a savings bank in the Providence Savings Institution v. Gardner, 4 R. I. 484.

Personal property, as a general rule, is taxable to the owner in the place where he resides, and land is always, so far as I am informed, in the place where it is situated. In the case of corporations, which deal in money and securities, like banks, the stockholders are the beneficial owners of all the corporate property, and are taxed for it in the places where they reside , and consequently the personal property of such corporations is not liable to another tax assessed on the corporation in the town where it is established and has its principal place of business. In some cases where personal property is employed in manufactures and in trade, and by the nature of the employment is paid in the place where the business is transacted, and in that respect assumes the character of real estate, the property is taxed in the place where it is so employed. In making personal property so used and employed taxable where it is situated, the law follows the same general policy, which requires land to pay taxes in the place where it is situated.

By our statute all real estate, with certain specified exemptions, is liable to be taxed. Rev. Stat. ch. 39, sec. 2. But it is important, in the present inquiry, to bear in mind that there is no law of this State which makes personal property generally liable to taxation. Our statute sets out and describes the different classes of personal property liable to be taxed, and no other personal property than the kinds thus specified and enumerated is liable to be taxed in this State. Rev. Stat. ch. 39. sec. 3. The chapter, which declares and defines what personal property is taxable, does not prescribe the rate or the mode of taxation; it only states what personal property shall be liable to taxation; and the evident intention is that no other personal property shall directly or indirectly be taxed or bear the burden of taxation. Other chapters prescribe where and to whom the property thus made liable to taxation shall be taxed, and in what manner the tax shall he assessed and realized. Smith v. Burley, 9 N. H. 423, 429. It is not, therefore, incumbent on the party, who resists a tax assessed on personal property, to show a special exemption; but the town, which claims the right|to tax, must show that the property taxed comes within some description of property made specially liable to taxation by statute.

I find no law of this State which authorizes the pérsonal property belonging to a savings bank, or to a bank of discount and deposit, to be taxed to the bank in the town where it is established and has its place of business.

It has been said that a corporation is a person within the meaning of the statute on the subject of taxation, and that the establishment of a corporation in a town is equivalent to the residence or inhabitancy of a person there; and that consequently a corporation may be taxed for its personal property in the place where it is established, under the statute which provides that "every person shall be taxed in the town in which he is an inhabitant or resident on the first day of April, for his poll and *393 estate, except in cases otherwise provided for by law.” Rev. Stat. ch. 40, sec. 1. It is evident that if this construction of the statute can be applied to savings banks, it may be to every other bank and to corporations generally ; and that if it can be applied to stock owned by a corporation, it is equally applicable to all other, kinds of taxable personal property. Stocks in corporations, with the exception of railroad and manufacturing corporations, are taxed to the owners of the stock in the towns or places where they reside, if they reside in this State; and where they reside out of the State the stock is taxed to the corporation; but the corporation has a lien on the stock for the taxes thus paid on account of the non-resident stockholders, so that ultimately in all cases the stockholders pay a tax on all the property of the corporation. Rev. Stat. ch. 40, secs. 4 and 15. The consequence of treating corporations as persons residing in the town where they are established and taxing them there for the personal property which they own on the first day of April, would be to levy a double tax on all such property; a result which never could have been contemplated by the statute. And looking to the language of the statute we see that the person made by it liable to be taxed is one that is an inhabitant or resident of the town and is taxable for his poll as well as his estate. It can hardly be seriously maintained that a savings bank is such a person, — one that is an inhabitant or resident of the town, — and liable to be taxed for his poll and estate. A construction so unnatural and forced, and leading to such consequences, would do violence to the language of the statute and be in direct conflict with the whole policy of the law, which everywhere aims to avoid the injustice of double taxation.

In certain cases property of corporations is by special provisions of the statute taxable to the corporations; and where the law has made property taxable to the corporation, and no other provision is made on the subject, there is an express provision of the statute that it shall be taxed to the corporation by its corporate name in the town or place in which it is situated; a provision which would be idle and wholly unnecessary, if corporations for the purposes of taxation were to be regarded as persons residing in the places where they are situated; and this special provision that corporations shall in certain eases be taxed in the places where they are situated, furnishes a strong argument to show that it was not intended they should be taxed there in other -cases.

Property must be taxed to the parties and in places that the law prescribes, and cannot be taxed to other parties or in other places. I do not think that corporations are persons inhabiting and residing in the towns where they are situated within the meaning of the statute which makes such persons liable to be taxed for their polls and estate in the towns where they reside. And I find no other law of this State which can be supposed to authorize stock of another corporation to be taxed to a savings bank in the place where the bank is situated.

If the personal property of a savings bank can be taxed to the bank in the place where it is situated, certainly the personal property of o her banks may be so taxed; for if a savings bank is a person and an inhabitant of the town where it is situated, a bank of discount and deposit *394 .must be so. There can be no distinction in this respect between the two kinds of banks. And I take it to be quite clear that; a bank of discount and deposit is not liable to be taxed in the place where it is situated, for stocks of another corporation, or for other personal property; and there is an excellent reason why there should be no such tax, for, if there were, it would be a double tax of the same property. All the funds and property of the bank are taxed to the stockholders on the appraised value of all the stock; stock in other corporations and other personal property of the bank goes to make up the appraised value of the stock. If, therefore, the bank owning stock of another corporation, or other personal property, is taxed for it in the town where the bank is situated, such stock or other personal propertj pays two taxes, one assessed on the individual stockholders, and another assessed to the bank on the specific property.

Suppose, for an illustration, that there were two banks, each with a capital of one hundred thousand dollars, and one of them should become the owner of all the stock in the other by purchase from the stockholders, then the stockholders, who had sold their stock, would take and carry away the capital which they had paid into the bank, and the capital of the other bank, instead of being invested in notes and securities, would consist of the stock thus purchased; and it is plain that there would be but one sum of one hundred thousand dollars for the capital of both the banks. If, then, the bank which owned the stock of the other corporation, were taxed for it in the town where the bank was situated, the same hundred thousand dollars would pay two taxes, one assessed to the bank on the stock of the other corporation, and another on the stockholders of the bank in the towns and places where they resided. Such is the plain mathematical operation of the transaction; and so, pro tanto, if part of the funds of a bank were invested in the stock of another corporation.

There appears to be no law of this State, which, in terms, or by any fair construction, authorizes the stock of one corporation to be taxed to another corporation in the town or place where it is situated; and it is quite clear to my mind it was never intended that any such tax should be assessed, because it would amount to a double taxation as has been shown. And without resorting to the law relating specially to the taxation of funds in savings banks, the plaintifts might well rely on the general negative position that there is no provision of the statutes which gives the defendants authority to assess their tax on the personal property of the bank.

But the position that the personal property of savings banks is not taxable to the banks in the places where they are established and transact their business, does not rest merely on the want of statutory provision for so taxing it. The intention to omit from taxation, direct and indirect, all deposits under three hundred dollars in amount, is readily inferred from the successive provisions which the legislature have from time to time made on the subject.

Since the statute of January 4, 1833, money deposited in savings .banks has, for the purposes of taxation, been specified as a separate and *395 distinct kind of property, and made liable to be taxed as such; from which the inference is strong that the intention was it should be taxed in that way and no other. That statute enumerates the different kinds' of personal property subject to taxation, and among them we find "money at interest more than the owner pays interest for, including money on hand or deposited in any bank, and all deposits in any savings bank or institution where the whole amount of deposits exceeds one hundred dollars.” It is quite impossible to believe, that, by introducing this distinction between deposits in savings banks and in other banks, the intention was to discriminate, against deposits in savings banks, making those over one hundred dollars in amount taxable to the depositors in the towns where they resided, and leaving all the deposits, large and small, liable to a tax assessed on the personal property of the bank in the place where it was situated. The manifest intention was to favor and encourage small deposits in savings banks by omitting them from the list of taxable personal property, and not to impose two taxes on deposits of more than one hundred dollars in amount, one assessed on the depositors, and the other on the personal property of the bank.

By the Rev. Stat. ch. 39, sec. 3, art. 3, "all money on hand or at interest more than the owner pays interest for, including money deposited in any.bank or savings institution,” was liable to be taxed without regard to the amount of the deposits, and, by ch. 40, sec. 1, was taxable to the depositors in the towns where they resided. Under these provisions of the Revised Statutes, the whole amount of the deposits paid a tax like other money, assessed on the depositors, who were the beneficial owners of all the funds and capital of the bank in the towns where they resided. I cannot bring my mind to entertain the opinion that this money, so deposited and invested by the bank for the depositors, having paid a full tax assessed on the deposits, was intended to be liable to another tax assessed on the bank in the place where the business of the bank was transacted for the benefit of that place. We may safely take it for granted that under the Revised Statutes no stock, money at interest or other personal property belonging to savings banks, could be taxed to the banks in the places where they were established.

The law so remained till the act of 1848, which required the treasurers of savings banks to give assessors notice of deposits amounting to one hundred dollars and upwards, standing to the credit of depositors residing in the respective towns. This, it is said, exempted deposits for less than one hundred dollars from taxation in the towns where the depositors resided. I do not think that exemption is the most appropriate word to be used in this connection, as it would seem to imply that there is some general law, making personal property liable to taxation, unless it can claim a special exemption, whereas the party that claims the right to tax is bound to show the particular law which makes the property taxable.

If, after the statute of 1848, deposits under one hundred dollars in amount were not .taxable to the depositors, it was because so much of the former law as made such deposits liable to taxation was repealed by implication. Take that to have been the case,- how will the law read *396 after this implied repeal? It would stand thus : "All money on hand, including deposits in savings banks of one hundred dollars and upwards,” is liable to be taxed, leaving deposits under one hundred dollars without any provision for taxing them.

What effect are we asked to give this statute repealing so much of the former law as made deposits under one hundred dollars liable to be taxed? We are asked to make the personal property of the bank liable to a tax assessed on the corporation in the town where it is established, leaving deposits for one hundred dollars and over liable, as before, to a tax assessed on the depositors, thus imposing on them an additional and double tax, and also transferring the whole benefit of the tax assessed on the personal property of the corporation from the towns where the depositors and beneficial owners reside, to the place where the bank transacts the business of managing their money for them. It would be extravagant to maintain that an implied repeal in part of the burden before imposed on money saved up in these institutions was intended to impose an additional and double burden on deposits for one hundred dollars and upwards. I can have no doubt that the intention was, on the contrary, to encourage and favor small deposits in savings banks by relieving them wholly from the burden of taxation, leaving them to stand in this respect on the same footing with other large classes of personal property, which are not liable to be taxed because they are omitted from the list of taxable articles.

It may be instructive to look a little at some other provisions of the statute which declares and defines what personal property shall be liable to taxation. Among the things enumerated are "all carriages if exceeding fifty dollars- in value; all horses, asses and mules over 18 months old; all oxen, cows and neat stock over 18 months old; all sheep over fi months old.” Suppose we add, "and all deposits in savings banks if over one hundred dollars in amount.” Then deposits under one hundred dollars in amount will stand like carriages under fifty dollars in value, horses, &c., under 18 months old; that is to say, they will be omitted from the list of property liable to taxation. Carriages under fifty dollars in value, horses under 18 months old, &c., are not liable to be taxed, and why? Because, being omitted from the list of taxable property, it was not intended that such property would bear the burden of taxation, and so, for the same reason, because they were omitted from the list of taxable property, deposits in savings banks under one hundred dollars in amount were not intended to be taxed, or to bear the burden of taxation, either directly in a tax assessed on the deposits, or indirectly in a tax assessed on the personal property of the corporation in the town where it is situated. Rev. Stat. ch. 39, sec. 3.

It is hardly necessary to remark that the law of 1861, which increased the amount of deposits required to be notified to assessors, can have no effect on the principle which will govern the interpretation of the act in this particular. That change can mean no more than that the legislature in their wisdom found it expedient to extend the benefit of the former repeal to deposits of a larger amount.

This question would seem to have been discussed as if all deposits in *397 savings banks were liable by some general law to taxation, and that, if they were not taxed to the depositors, it was necessary to follow them into the hands of the corporation and devise some way to reach them there in order to prevent them from evading legal taxation. This is a mistaken view of the subject; for there was no law, when this tax was assessed, that made deposits under three hundred dollars in amount liable to be taxed at all; and to my mind it is quite clear, that, previous to the law of 1864, it was the legislative intention that such deposits should not directly or indirectly bear the burden of taxation any more than neat stock under 18 months old, or carriages not exceeding fifty dollars in value. It is to be observed that the statute of 1864 follows the general policy of the law in making the money deposited in savings banks subject to a tax assessed for the benefit of the towns where the depositors reside, and gives no countenance to the manifest injustice of assessing a tax collected out of deposits belonging to the inhabitants of other towns for the benefit of the places where it happens that the banks have established their business and conduct their corporate agency for the depositors who are the beneficial owners of all the funds.

It is not easy to suggest any satisfactory reason why deposits invested in the stock of other corporations and yielding an income in the shape of dividends should be taxed to a savings bank any more than deposits invested in notes or other securities for money lent. Six per cent, received for dividends on stock is substantially the same income as six per cent, received for interest, and the bank accounts to the depositors for both kinds of income in the same way. It was accordingly held in the Worcester Savings Bank v. Worcester, 10 Cush. 128, that, in Massachusetts, savings banks are not taxable for bank stock, in which money received on deposits has been invested, on the ground that the money deposited was to be regarded as money at interest, and the bank paid interest on it to the depositors. In Massachusetts the statutory provisions of the law on this subject are not, of course, identical with ours; but I can discover no difference which will prevent that case from being regarded as an authority in point. 31elcalf, J., in delivering the opinion of the court refers to the Revised Statutes of Massachusetts, ch. 36, sec. 81, and ch. 7, sec. 4, for the law which governed the case. Section 81 of ch. 36, provides that "the income or profit of all deposits shall be divided among the depositors or their legal representatives in just proportion,” which agrees with the law in this State/ And section 4, of ch. 7, enumerates certain kinds of personal property, which are made subject to taxation, including "all money at interest due to the persons to be taxed more than they pay interest for, and stocks in turnpikes, bridges, and all moneyed corporations.” In that case the stock taxed was in a moneyed corporation, and made liable to be taxed by statute as such stocks are here, and there was no provision of the Massachusetts statutes that deposits in savings banks invested in such stocks should be regarded as money at interest, so that the dividends on the stock should be considered as so much interest received on a loan of money; yet the court held that the money invested in the stock was money at interest within the meaning of that statute, and that the stock *398 could not be taxed to the bank, because the bank accounted to the depositors for the income received on the stock as they did for interest on money lent. And the law here as in Massachusetts requires all the income of the deposits to be accounted for to the depositors. Metcalf, J., also says that the case could not be distinguished from that of banks and other corporations in Massachusetts, where the property of the corporation was taxed to the stockholders ; which must mean that the depositors are stockholders of the capital belonging to a savings bank within the meaning of the statute which speaks of stockholders in corporations. So, in the Savings Bank v. Gardner, 4 R. I. 484, it was held that stock held by a savings bank in another corporation could not be taxed to the bank in the place where it was situated.

It is a fundamental principle in taxation that the same property shall not be subject to a double tax, payable by the same party either directly or indirectly, and where it is once decided that any kind or class of property is liable to be taxed under one provision ot the statutes it has been held to follow as a legal conclusion that’the legislature could not have intended the same property should be subject to another tax, though there may be general errors in the law, which would seem to imply that it was to be taxed a second time. In Smith v. Burley, 9 N. H. 423, this rule of construction was applied to a case where the property of a corporation was taxable to the corporation in the town where it was situated, and the attempt was to collect a tax assessed on a stockholder in the town where he resided, under the provision of the statute which made stockholders in corporations liable to be taxed for their stock in the places where they resided. The statute then in force provided that "all stock in any corporation or company on which any income was received or any dividend made,” should be taxed to the owner in the town where he resided. Statute of* January 4, 1833. It was held, notwithstanding these general terms making the stock taxable to the stockholder, that, inasmuch as the property of the corporation was legally taxed to the corporation under the law then in force, the stockholder could not be taxed for his stock in the place where he resided, because that would indirectly amount to a double taxation of the same property. Parker, J., in delivering the opinion of the court says : "A taxation of the shares at their appraised value would in fact be a double taxation, once to the corporation itself and again to the corporators, which would be unjust, oppressive and unconstitutional. It is clear, that, so far as deposits of three hundred dollars and upwards are concerned, the tax on the personal property of the corporation is a double tax, and the authority of Smith v. Burley is directly in point.

There are numerous other cases in which this rule that property shall not be held liable to double taxation has been recognized and applied. Smith v. Exeter, 37 N. H. 556; American Bank v. Mumford, 4 R. I. 482; Savings Bank v. Gardner, 4 R. I. 484; Savings Bank v. Worcester, 10 Cush. 128; Glass Co. v. Boston, 4 Met. 181, 183, 184; Water Power Co. v. Boston, 9 Met. 202; Iron Factory v. Danvers, 10 Mass. 514; Factory Co. v. Gardner, 5 Greenl. 133.

Several answers have been suggested to this objection of double tax *399 ation in the present case. It is said that the objection cannot avail because personal property stands in this respect on the same footing with land, and land is clearly taxable to the corporation in the town or place where it lies, and thus pays a double tax. In the first place, if this were so, and land on account of its fixed character necessarily paid a double tax, one assessed on the deposits, and the other on the land itself, it would not follow that the injustice of a double taxation should be unnecessarily extended to personal property of the corporation. But the law of this State is not guilty of imposing an unjust double tax on land owned by such corporations. The depositors in savings banks are the ‘ beneficial owners of all the property held for them on a corporate trust by the bank's. They own the whole property and capital in shares proportioned to the amount of their respective deposits, as much as the shareholders or stockholders in any other corporation; and, under the statute, assessors are required when they tax the deposits, to deduct from the appraised value of the shares in the corporation "a just-proportion-of the value of any estate of such corporation, which shall be legally taxed elsewhere, upon satisfactory evidence thereof under oath.” Rev. Stat. ch. 42, see. 1. I can have no doubt that this provision of the statute, to avoid the injustice of double taxation, was intended to reach, all cases, where by the general law the property of corporations is taxed to the beneficial owners, in the towns where they reside, and a part of the property, like land, is taxable to the corporation; and that on proper application it would have been the duty of the assessors in the present case to deduct the value of the land taxed to the corporation from the aggregate value of the deposits taxed to the depositors.

It has been argued that the annual payment of one per cent, on the capital of banks required to be paid to the literary fund is in substance a double tax. But it is not-named nor assessed as a tax; it is a fixed sum paid yearly, and not varying in amount like other taxes, according as they are voted in different places and in different years; and has more the character of a bonus voluntarily paid for the right to exercise the privilege of banking than of an ordinary tax.

Then, again, it is contended that to double taxation is no legal objection, because land mortgaged is taxable to the mortgagor, while at the same time the mortgagee .is taxable for the money secured on the land as for money at interest. If this were in substance a double tax, it would only show that the statute has in this instance admitted an an-, ornaly in conflict with the general policy of the law, which can only be excused on the ground, that, from the nature of the case, the injustice of double taxation cannot be avoided. But in such a case there is in fact no double taxation of the same property. Neither the land nor the money is twice taxed. The mortgagor may be burdened with taxes dis-proportioned to his means; but it is not because he has mortgaged his land to secure payment of the money which he has the misfortune to owe. His case in this respect would be no way improved if he had obtained the money on the personal security of his friends, or withouj^ny security at all. If he pays more taxes than he can afford, it is|g|te of the many inconveniences that belong to the condition of a man irmfebt, *400 and not because the money which he owes has been raised by a mortgage of his land.

Another answer made to the objection of double taxation is, that it does not appear by the case that this bank had any deposits of three hundred dollars and upwards in amount. It would be just as easy to say that it did not appear that they had any deposits under three hundred dollars in amount. It certainly could not have been the intention of the law to make the right of taxing personal property belonging to a corporation to depend on the amount of the respective deposits or shares. The question must be determined by some general rule, whether the personal property belonging to such institutions is liable to be taxed to the corporations in the towns where they are established. It could not have been intended that assessors should be required to overhaul the affairs of savings banks, and ascertain how large a proportion of their deposits were under or over three hundred dollars in amount, before they could decide whether they had by law the right to tax such property to the corporation.

The conclusion is that so much of the tax must be abated as was assessed on the stock in another corporation, and so much of it must stand as was assessed on the land in Nashua.