The opinion of the court decides that new method of railroad taxation was adopted either in 1881 or 1891. It rejects the view that the act of 1881 and the revision of 1891 merely amended the law so far as necessary to bring it within the constitutional requirements laid down in Boston etc. R. R. v. State, 60 N.H. 87. The conclusion is reached by giving too great weight to the acts of the board of equalization and the attorney-general, and too little weight to the history of the law and the action of the court in relation to it.
The first statute on the subject was passed in 1842, as an amendment to the report of the commissioners who revised the statutes. Comm'rs' Rep. R. S., c. 39; R. S., c. 39, ss. 4-6. It provided for a tax of one per cent upon the value of that part of the capital stock expended within this state, to be determined by the certificate of the justices of the superior court. Ib., s. 4. No tax was ever assessed under this law. The Revised Statutes became effective March 1, 1843 (R. S., c. 230, s. 1), the court did not meet thereafter until July (R. S., c. 171, s. 12), and before that time the statute of 1842 had been repealed by the act of July 1, 1843, which provides that the tax shall be assessed "in proportion, as near as may be, to the taxation of other property on the first day of April, . . . in the several towns in which said railroads are situate." Laws 1843, c. 34, s. 4. Under this statute the court assessed a tax based upon the municipal tax rate from the beginning. In the language of their certificates filed with the state treasurer, they "assessed a tax on said corporation in proportion as near as might be to the taxation of other property the present year in the towns through which the road passes." Certificate of Justices Gilchrist, Woods, and Eastman, dated August 29, 1850.
The idea that the tax was at the fixed rate of one per cent until 1867 has apparently arisen from the error made by the compilers who edited the statutes in 1853. In this edition the acts of 1842 and 1843 are both printed, as though the tax were assessed *Page 575 at one per cent and also at the local rate. C. S., c. 41, s. 4. The apparent impossibility of complying with both these requirements (except by some process of assessorial legerdemain) would of itself throw great doubt upon the editors' views. The action of the court is ample evidence that the act of 1842 was repealed in 1843, and further confirmation is found in the commissioners' report in 1867. "The capital of every railroad expended in this state shall be taxed as near as may be in proportion to the taxation of other property in April of each year, in the several towns in which such railroad is located." Comm'rs' Rep. G. S., c. 58, s. 1. In adopting this section, the commissioners understood that they were using substituted words to express the meaning of the existing law. They did not intend to change the sense. Ib., marginal notes; Introductory Rep., p. iv. The section was adopted without change (G. S., c. 57, s. 1), and the court continued to assess the tax as it had from the beginning. The commissioners' report on this topic is entitled to more than ordinary consideration, from the fact that each of the commissioners (Samuel D. Bell, Asa Fowler, and George Y. Sawyer) had been a member of the court and participated in assessing the railroad tax.
Prior to 1864, deposits in savings banks (less small exemptions) were taxed locally as money at interest. Laws 1833, c. 108. So long as this was the law, the tax upon savings bank deposits was included in the calculations for obtaining the local rate. In 1864, the system of savings bank taxation was changed, and a tax of three fourths of one per cent on the deposits and accumulations due to depositors was collected by the state. That representing the deposits of residents was paid to the cities and towns where they resided, and that on the deposits of non-residents was retained by the state. Laws 1864, c. 4028, s. 1. This change brought before the court, in 1865, the question now being litigated: Should the savings bank tax, collected. by the state, but for the direct benefit of the municipality, be considered in determining the average rate of taxation upon other property? The act of determining this question was judicial.
"In one class of tax cases our jurisdiction of the questions of liability and amount has been original. From 1843 to 1878 the statute required the railroad tax to be assessed by the justices of this court. . . . The obligatory force of this law has not been an open question since the judicial character of the assessment has been fully admitted. . . . Whatever doubt or opinion may have been entertained by any or all of the judges before the judicial nature of the work was seen and acknowledged, the record shows that for at least eighteen years — the latter half of the period during which the railroad tax was assessed by us and our *Page 576 predecessors — the assessors understood they were acting in the official capacity of justices of this court." Doe, C. J., in Boody v. Watson,64 N.H. 162, 175, 176.
In the performance of the recognized judicial duty, it was incumbent upon the court in 1865 to determine the status of the new tax as related to the railroad tax. The issue was not merely a theoretical one. Its decision involved substantial sums. In the city of Nashua alone, and as to one railroad only (the Nashua Lowell), it would have made a difference of over $200 in the annual tax. The circumstances were such as to call this matter into prominence. It was near the close of the war, when taxes were on the increase. To follow out the above example: The rate in Nashua went from $1.40 in 1864, to $2.25 in 1865. Twelve cents of this was caused by the withdrawal of savings bank deposits from the local assessment.
The decision of the court was that the tax should be assessed at the local rate, as it had been, and the savings bank tax was left out of the reckoning. Each year thereafter, until 1879, the question was before the court for decision, and the construction put upon the statute was always the same. This alone may well be deemed to settle and fix the meaning of the statute. Fitchburg R. R. v. Prescott, 47 N.H. 62, 67. In that case it was said that it was the settled practice of the justices of the court in assessing the railroad tax to include fuel on hand for immediate use as part of the taxed estate; and it was held that "upon the point whether these materials are properly so taxed, the long and settled practice of the court might well be considered as conclusive." This language is quoted with approval by Chief Justice Doe in Boody v. Watson, 64 N.H. 162, 176.
Early in the seventies tax agitation increased. Judge Sawyer's report in 1876, as chairman of the first commission, does not refer to the railroad tax; but the report of the second commission, in 1878, gives the full record of the extended hearings upon this subject, and a copy of the legislation proposed by the commission. A perusal of the arguments advanced by counsel for the various railroads will disclose that none of them claimed that the savings bank tax was or ought to be included in calculating the rate. There was criticism of the theory adopted for valuing railroad property, and much complaint of the inequality of taxation caused by using the local rate instead of the average rate throughout the state; but no suggestion was made that there was either legal or equitable claim under existing statutes to a reduction of the railroad tax because of the favor shown savings banks. App. Rep. Tax Comm'rs, 1878, pp. 43, et seq. In the brief filed by counsel for the roads, the disparity between the savings bank tax and the *Page 577 railroad tax is pointed out and urged as a reason against further increasing the railroad tax. It is not there claimed that the roads are entitled to share in the existing discrimination against taxpayers in general. Ib. 68, 69. The commission proposed an act levying the tax on the road, rolling stock, and equipments at the average rate of taxation in all the cities and towns in the state (Ib. 173), and an act establishing the state board of equalization (Ib. 193).
The commissioners to revise the statutes reported the existing law without change. Comm'rs' Rep. G. L., c. 58. The legislature adopted a compromise measure making the basis for valuation the road, rolling stock, and equipment, but retaining the provision as to the local rate (Laws 1878, c. 70; G. L., c. 62, s. 1), and established the board of equalization. Laws 1878, c. 73; G. L., c. 61. It would seem that this second re-enactment of the statute as to rate, after thirty-five years of uniform construction by the court, and in view of the arguments reported by the tax commissioners to the legislature, must have given a clear and settled meaning to the language of the act. The legislators must have understood that the rate named in the statute was the rate in cities and towns.
In 1879, the board of equalization assessed the tax as the court had theretofore assessed it, excluding the savings bank tax. The Boston, Concord Montreal Railroad ran through towns having a high tax rate; and upon an appeal by that road it was held that as the levy was in part, at least, a state tax, it must to that extent be assessed at the average rate throughout the state, because the state was the taxing district. The question whether it was wholly a state tax was left undecided. Boston etc. R. R. v. State, 60 N.H. 87. The referees by whom the facts were found thereafter reported the average local rate throughout the state, and the court ordered the tax assessed at that rate.
After this decision, the board of equalization voted that the railroad tax be considered a state tax and that it be assessed at a uniform rate. To determine the average rate, they added the total of the local inventories to the taxable savings banks deposits, and the total local tax to the savings bank tax; and, dividing the second result by the first, found an average rate of $1.44 +. They then voted that the railroad rate be reduced from $1.44 to $1.25, because other property was undervalued, and assessed the tax at the last mentioned rate. From the tax so assessed the Boston, Concord Montreal Railroad again appealed, and the case was sent to three referees. Judge Jeremiah Smith was chairman of this board. The case was fully argued both before the referees *Page 578 and the court. 148 Briefs and Cases 321, et seq. It was before the court on a preliminary ruling of the referees in June, 1882, and the next fall they made their final report. This report sets out in detail the method adopted by the board of equalization to include the savings bank tax. It also contains other computations, including that tax by a different method of calculation. After placing all phases of the matter fully before the court, the referees decided that the savings bank tax was to be wholly excluded, and found the amount of the railroad tax upon that basis.
In August, 1883, the court delivered the opinion affirming the judgment of the referees. "By the act of 1878 (G. L., c. 62, s. 1) and the act of 1881 (c. 53), railroads are taxed `as near as may be in proportion to the taxation of other property' in towns and cities. The savings bank tax (G. L., c. 65, s. 8) is an anomaly, resting on peculiar grounds of public policy, and is universally understood to have acquired the position of an exception to the constitutional rule of equality. It is so regarded in the assessment of state, county, and town taxes upon unincorporated persons, and in their tax appeals; and the plaintiffs' charter is not a statutory or constitutional ground of exemption." Boston etc. R. R. v. State,62 N.H. 648, 649. This language seems reasonably plain. The savings bank tax is an exception; it cannot be classified; and as it is not taken into account in assessing the taxes of individuals, so it is to be disregarded in assessing taxes of corporations.
It is urged that because this particular method of taking advantage of the savings bank rate was not argued to the supreme court, therefore the question was not there decided. This argument fails to take into account the nature of the proceeding and the duty of the court in the premises. The appeal is taken from the decision of the board of equalization to the supreme court at its law term; and upon the appeal the court is required to make such order as justice requires. G. L., c. 61, s. 9. By this procedure all questions of assessment are transferred to the court for final decision. Boody v. Watson, 64 N.H. 162, 175. The positions taken by Judge Ladd on behalf of the road were: (1) That the tax was wholly unconstitutional; (2) that it could not be assessed at a higher rate than the savings bank tax of one per cent. Both of these positions were denied by the court. Had it then decided the case? By no means. It had merely decided (as to two propositions) what the tax should not be. The problem of what the tax should be was still to be solved. The scope of inquiry had been narrowed by the elimination of these two propositions, but the question what the assessment should be remained. The judges had before them the referees' report, calling to their *Page 579 attention the somewhat crude method by which the board of equalization included the savings bank tax. It also presented a more scientific calculation for the inclusion of that tax; and it closed with the decision of the referees that the law was that the savings bank tax should be excluded. With this report to act upon, and in discharge of the duty to dispose of all questions presented as justice required, the court made use of the language before quoted. In so doing they intended to decide, as Judge Isaac W. Smith entered upon his files, that the tax was "to be assessed as if there were no savings banks"; or, to put it as Judge Clark made the entry in his docket, it was "agreed that no deduction of tax should be made on account of savings bank tax being one per cent and other property one and a half per cent." The argument that because the omission of the savings bank tax from the calculation would have made a difference of but a few hundred dollars in the tax assessed, therefore the court paid no attention to that matter, is hardly worthy of serious consideration. The question involved was a legal one. It was not a commercial transaction.
It is further urged in disparagement of this case as an authority, that the final order for abatement, made at the June law term, 1884, is not in harmony with this view of the decision. Before taking the appeal the road paid $17,000 on the tax assessed against it, and the referees were of opinion that the tax should be $21,255.68, leaving a balance due of $4,255.68. The claim is that the court thereafter allowed an additional abatement of $2,331.10, so that the balance finally paid was but $1,924.58; and from this it is argued that whatever the decision may mean, it cannot be what the plaintiff here contends. When the facts are fully known, this position is seen to be untenable. The idea that only $1,924.58 was paid comes from a statement in the printed report of the state treasurer for the year 1888, wherein this sum is named as the balance received from the Boston, Concord Montreal on account of the tax for 1880. In fact, it was the balance of the $4,255.68 due upon the tax for 1880, after deducting therefrom an abatement of $2,331.10 which the road had obtained on the tax for 1881. Boston etc. R. R. v. State, 64 N.H. 490. The order allowing the abatement of $2,331.10 was made in the appeal from the tax for 1881 in 1888, four years after the case involving the 1880 tax went off the docket. When the facts are rightly understood, it appears that the order made in 1884, and complied with in 1888, constitutes an additional affirmation of the rule by the court. Here, again, added weight is given to the transactions by the fact that the chairman of the referees and the counsel for the road had both been members of the court when it assessed the railroad tax. *Page 580
With the disposition of that case, litigation on this subject ceased, and the court had no further occasion to construe the statute until the question was raised in this proceeding. The record of forty years constant dealing with the matter of fixing the rate shows that one course was consistently pursued. From the assessment of the first tax in 1843, it was levied in proportion to the local rate. In 1865, it was decided by the judges to continue to assess at the local rate, and leave out the newly created savings bank tax. This decision was yearly reaffirmed when the assessments were made, until 1879. In that year the board of equalization followed the same rule, but abandoned it the next year. In 1882, Judge Jeremiah Smith held that the rule followed by the court was the correct one, rejecting the innovation sought to be introduced by the board of equalization. In 1883, the opinion heretofore quoted (62 N.H. 648) again asserted the position that the savings bank tax was not to be considered, and the order in the case made the next year reaffirms the decision. No other rule was ever countenanced by the court.
The legislature of 1881 amended the law to conform to the decision of Boston etc. R. R. v. State, 60 N.H. 87, substituting "all the cities and towns of the state" for "the several towns and cities in which such railroad is located." Laws 1881, c. 53; Boston etc. R. R. v. State,62 N.H. 648; State v. Jackson, 69 N.H. 511, 523. The commissioners to revise the statutes in 1891 reported the act with changes which were not intended to alter its meaning (Comm'rs' Rep. P. S., c. 63, s. 1), and the legislature adopted the act as reported by the commissioners. P. S., c. 64, s. 1. Applying the usual rule, it must be held that the construction of the statute has thus become settled, so that it cannot be changed except by legislative action. Tomson v. Ward, 1 N.H. 9; Jewell v. Holderness,41 N.H. 161; Frink v. Pond, 46 N.H. 125; Parsons v. Durham, 70 N.H. 44; Burgess v. Burgess, 71 N.H. 293.
It is urged that there has been "continued uninterrupted acquiescence and recognition of the method of the board of equalization by the legislature." This assertion is not borne out by the record history of the board and its relations to the legislative department. The act creating the board contained no provision for its making any report of its doings to the legislature. An abstract of its equalization of local valuations throughout the state was to be compiled by the secretary of state as a basis for apportioning the state tax. The secretary of state was to lay this before the legislature at the opening of the session, when the state tax was to be apportioned. Laws 1878, c. 73, s. 8; G. L., c. 61, s. 8. The records of the board's proceedings were to be filed with the secretary of state. Laws 1878, c. 73, s. 2; G. L., *Page 581 c. 61, s. 2. A certificate of "their determination" as to the railroad tax was to be filed with the state treasurer. Laws 1878, c. 70, s. 4; G. L., c. 62, s. 4. There were no other provisions for reporting the acts of the board. The provision requiring an annual "report of their doings" to be filed with the secretary of state was added by the commissioners who revised the statutes in 1891. Comm'rs' Rep. P. S., e. 62, s. 7; P. S., c. 63, s. 7. There are, then, three places where information concerning the acts of the board from 1879 to 1891 may be sought: the record filed with the secretary of state, the reports to the legislature, and the certificates filed with the state treasurer.
The records of the board for 1879 do not show what the rate was or how it was determined. After the decision in Boston etc. R. R. v. State,60 N.H. 87, the board met on September 7, 1880, and considered the recent decision of the supreme court in the appeal cases, and counsel were heard in reference to the intent and meaning of the decision. The next day it was voted that the tax upon railroads be regarded as a state tax and be assessed at a uniform rate. September 29, they adopted a resolution reciting that the average rate of taxation upon the taxable property of the state was about $1.44, and that there was such undervaluation that the railroad tax ought to be assessed at $1.25. Below the record of this meeting is an unsigned statement, evidently written by the secretary of the board, as follows:
VALUATION AND TAXATION, 1880.
Amount of inventories $168,995,309 Taxes on same $2,563,144.31 Savings bank deposits 28,293,929 " " " 282,939.29 ------------ ------------- Amount taxed $197,289,238 Amt. of taxes $2,846,083.60
Average rate 1.442 on a $100.
This is the assessment from which the appeal was taken which is reported62 N.H. 648.
In 1881, below the record of the meeting held September 21, is a similar statement of valuation and taxation, giving a rate of $1.46. September 27, it was voted to fix the railroad rate at $1.25, "so that the rate be fixed proportionally as much below the average rate upon other property as other property has been undervalued."
In 1882, the board reheard many appeals from the tax of 1881, which were sent to them by the court under the rule adopted at the December, 1881, law term. There is no record of how the abatements were allowed, but the files of the court in the several counties seem to show that it was because other property was *Page 582 undervalued. The rate question was not considered. There is a similar statement as to valuation and taxation this year, giving a rate of $1.41. The railroads were taxed at this rate, and their valuation was reduced eighteen per cent because other property was undervalued. By this method the railroads were given the benefit of the lower rate on savings banks twice — once by the reduction of rate and again by a reduction of values. The same thing is probably true of the preceding year, when the rate was reduced twice. From this time the method of reducing valuation, instead of a second reduction of the rate, was followed.
In 1883, a similar record was made. The rate was $1.49, and seventeen per cent was taken from the valuation.
All these assessments were made before the court decided the 1880 appeal. That decision was announced late in August 1883, and the assessment for that year was made July 13 — a month or two earlier than in former years. The first secretary of the board died before their sessions in 1884, and there is no further record of how the rate was made up, nor does it appear (as it did appear in the 1879 appeal case) that any consideration was given to the decision of the court. From 1884 to 1890, the record merely shows a vote to assess at the "average rate" of so much, with certain percentages deducted from the valuation.
The legislature did not understand that under the law the board was required to report to it upon the railroad tax. In 1881, the house adopted a resolution requesting the board to report in what way and manner they made the railroad tax, upon what basis they valued the railroad property, how they determined the rate of taxation, and whether they made the assessment in accordance with the statute. The board replied: "We regarded the railroad tax as a state tax, and held that as such it should be assessed as near as practicable upon a uniform valuation with the other property of the state and at a uniform rate. How we endeavored to effect these objects will more fully appear from our answer to the other branches of your inquiry. . . . The rate of taxation was determined by the average rate of taxation of the other property in the state, modified by a proportional value thereof. To this end we received evidence to show that the property of the state was not assessed at its full value; and having ascertained, so far as the evidence showed, the extent of such undervaluation, we deducted from the average rate of taxation a per cent equal to the per cent of undervaluation, and thus made the valuation and rate of taxation of railroads as near as practicable uniform with that of other property in the state. To the question whether this assessment is in accordance with the statute, we have to say: The statute (chap. 62, see. 1, Gen. Laws) provides that the tax on *Page 583 railroads shall be `as near as may be in proportion to the taxation of other property . . . in the towns and cities in which such railroad is located.' This implies that the railroad tax is a municipal tax; but the supreme court, in the case of the Boston, Concord Montreal Railroad's appeal from our assessment of 1879, practically decided that this tax is a state tax. And in that opinion the court say that `if the railroad tax is a state tax, this statutory provision is in conflict with the constitution, since a state tax must be proportional throughout the state.' Following what seemed to us the plain interpretation of this opinion, we assessed the railroad tax as a state tax, and disregarded the statutory provision referred to. A copy of the valuation and assessment of the several railroads is hereto annexed." Journal of Senate and House, 1881, p. 395. There was no statement of the rate and no further information given as to how it was arrived at.
September 6, 1887, Governor Sawyer transmitted to the senate and house the report of the board for that year. In the house, this was ordered to be referred to a special committee of one from each county, and no further notice was taken of it. In 1889, the report of the board for 1888 was transmitted with other department reports. All others were referred, but nothing was done with this. Assuming that these were the printed reports, neither of them contained any reference to the railroad tax; and aside from these, the journals do not disclose any reports from the board from 1881 to 1891. These two reports (for 1887 and 1888) are included with the bound volumes of department reports for 1887 and 1889 respectively. No others were so included up to 1891.
It might be urged that the secretary of state presumably laid before the legislature the printed summary provided for by the statute, that this was probably the statement entitled "Valuation and Taxation in New Hampshire," and that in this way the legislators were informed. Assuming this to be true, what does it show for the period under consideration? The printed report for 1881 contains a summary of the local assessments and taxes, and at the foot a computation adding these to the savings bank deposits and tax, and a statement that the average rate is $1.46. This includes the savings bank figures, although that fact is not stated. Immediately following this, as a part of the same statement, is the following: "Add to the amount of taxes above given the railroad and telegraph taxes (estimated as assessed last year) $176,192, and we have the whole amount of taxes assessed upon the persons and property of the state, to wit, $3,111,007, being a little less than $9 for each inhabitant." There is no other reference to the railroad tax.
In 1882, there is a similar recapitulation giving an average rate *Page 584 "including savings banks," followed by the summary for the preceding year. The reports for 1883, 1884, and 1885 are in similar form.
In 1886, there is the first statement of the railroad tax. It appears as a table giving taxable valuation of and the tax assessed against each road. In the summary of valuations, similar to those in former years, the rate is this year omitted for the first time. A mathematical computation shows that in the cities and towns it was $1.52, that including savings banks it was $1.413, and that the railroads were assessed at $1.42.
In 1887, the table of railroad taxes disappears, and the statement of the rate reappears. There was a similar report in 1888, with the additional element of capital in insurance companies and tax thereon.
In 1889 and 1890, the rate is given, followed by the usual statement of the rate, etc., for the previous year, and there is a table of valuation and taxation of railroads, but no accompanying statement of rate. In none of these years is railroad taxation or average rate mentioned in the preliminary report of the board. In the volumes of annual departmental reports, printed and bound by the state for preservation in its archives and for distribution to the towns and libraries in the state, this report was not included. G. L., c. 5, s. 6. The people were never officially informed of the acts of the board of equalization until the passage of the act of 1891, calling for a report. P. S., c. 63, s. 7. Such information on this subject as went to the legislature was an addendum to tables returned as a basis for assessing the state tax, to which this information was not germane. It appeared as information of general interest, with nothing to show its relation to the railroad tax. When requested to state how they determined the rate, in 1881, the facts were not given by the board, and they never stated in plain terms how the railroad rate was made up. Their certificates filed with the state treasurer follow in substance the form adopted by the court before 1878, and give no information on this subject.
It is immaterial why these reports were made as they were. The issue here is the publicity given to the details of the acts of the board. It is evident that what they had done could have been discovered by a search of the records in the secretary of state's office, coupled with mathematical computations based upon those records and the printed reports. But the claim here is that these acts were "notorious." The question is not: Could it have been proved that the acts were done? The issue is: Did the people know the facts? It rests upon the proponents of the doctrine of repeal by practical construction to establish their case. *Page 585 The available evidence here seems to disprove their proposition. Certainly, it does not prove the things necessary to establish that the people of the state, by their representatives in the legislature of 1891, knowingly and intelligently abandoned the right to a considerable portion of the tax upon public service corporations.
If further proof is sought as to how much or how little was known in the late eighties of this course of procedure, it may be found in the interesting history of the Boston, Concord Montreal Railroad's appeal from the tax for 1881. That case was made an exception to the general practice in that year and was heard by the court, instead of being sent for a retrial before the board of equalization. The reason appears to have been that in this case there was a special question (the value of the road) not common to the other cases. At the trial early in 1888, counsel for the road claimed that the rate found by the board of equalization for 1881 was $1.46. February 24, 1888, the secretary of the board, in response to an inquiry from counsel for the state, wrote him that the "board rate" for 1881 was $1.40. This was accepted by counsel on both sides and by the court as final, and the decision in the case rests upon this letter. The rate was in fact $1.46. That fact could have been ascertained either by inspecting the records of the board on file with the secretary of state or from the printed statements of "Valuation and Taxation," often referred to as the reports of the board. The evidence was not obtained from either of these sources. The fact that the rate reported varied largely from that printed in the statement of valuation and taxation, and from the record at the state house, passed unnoticed by either court or counsel. It is evident that the notoriety of this procedure did not extend to the legal profession at that time. Knowledge of how the state board of equalization was assessing a tax, not possessed by eminent counsel or by judges of the supreme court, is not to be imputed to the constantly changing membership of the legislature.
There is another source from which it is quite likely the legislators obtained knowledge of this decision of 1883. Morrison's Digest, issued in the bound volume in 1891, was available in the advance sheets in 1890. Under the title "Taxation," subhead "Banks, Railroads, Telegraph Companies," he states the law of this case (p. 735): "In the assessment of a railroad `as near as may be in proportion to the taxation of other property' in towns, the rate at which savings banks are taxed by the state is not considered. B., C. M. Railroad v. State, 62-648." Whether this was or was not known to the legislators, it is convincing proof that knowledge of the overruling power of the acts of the board of equalization had not become universal in 1891. *Page 586
The evidence is more persuasive that the legislators did not, than that they did, know how the board was assessing this tax. In one year (1881) we have the direct testimony of the house that it was ignorant of the rate and wished to be informed. It knew no more (so far as this issue is concerned) after the board made answer than it did before. If on the one hand it is to be urged that, with all this evidence of lack of knowledge, it is still presumed that the legislators knew what was being done by this board of lay judges, and that it approved and adopted their acts, what is to be said about their knowledge of the longer period covered by the contrary practice of the supreme court, of the earliest practice of this board, and of the reversal of its later action by the court? It is not to be presumed that the legislature understands that six years of disregard of a decision by the board of equalization overrules the action of the court of last resort.
It is said that, conceding the soundness of all that is urged as to the history of the statute, yet the legislature of 1891 must have intended to include the savings bank tax in the computation of the rate for the railroad tax because the court in 1879 held the former to be a property tax. This argument only takes into account a part of the evidence. If the legislature in 1891 knew that the court said in 1879 that the savings bank tax was a property tax, they also knew that in 1883 the court said "the savings bank tax is an anomaly, and is universally understood to have acquired the position of an exception to the constitutional rule of equality. It is so regarded in the assessment of state, county, and town taxes upon unincorporated persons, and in their tax appeals, and the plaintiffs' charter is not a statutory or constitutional ground of exemption." 62 N.H. 649.
But aside from the question of precedent, the case is against the defendants upon principle, because of the nature of the savings bank tax. The tax is computed at three fourths of one per cent upon the amount of general and one per cent upon the special deposits on which the corporation pays interest, including dividends declared but not paid, with certain exemptions. P. S., c. 65, s. 5, Laws 1895, c. 108, s. 1; Laws 1907, c. 102. It is not a tax levied upon a valuation put upon the property of the bank. It is not computed at the varying rate which is determined from year to year by the extent of the public needs. Whether the bank has much or little surplus, whether its assets have been carried on the books at a high or low figure, the amount of the assessment is not varied; and whether the needs of government be great or small, the rate is always the same. Such a tax is not a tax upon property, but rather a privilege tax, or an excise upon the *Page 587 franchise which the bank enjoys. This is the almost universal rule. Jones v. Bank, 66 Me. 242; State v. Bank, 71 Vt. 234; Commonwealth v. Bank, 5 Allen, 428; S.C., sub nom. Provident Institution v. Massachusetts, 6 Wall. 611; Suffolk Savings Bank, Pet'r, 151 Mass. 103; Coite v. Society,32 Conn. 173; S.C., sub nom. Society for Savings v. Coite, 6 Wall. 594; Monroe Savings Bank v. Rochester, 37 N.Y. 365; State Assessors v. Railroad,48 N. J. Law 146; Trenton Savings Fund v. Richards, 520 N. J. Law 156; United States etc. Co. v. State, 79 Md. 63; Southern Gum Co. v. Laylin,66 Ohio St. 578; Pingree v. Auditor-General, 120 Mich. 95; State v. Anderson, 90 Wis. 550; Plummer v. Coler, 178 U.S. 115; Cool. Tax. (3d ed.) 412, 413. See, also, the authorities collected in the note, 60 L.R.A. 333.
An ad valorem tax is a tax "upon property by a valuation, and effect can only be given to it by means of assessors, who value the property and apportion the tax by their estimate." Specific taxes are "those which impose a specific sum by the head or number, or by some standard of weight or measurement, and which require no assessment beyond a listing and classification of the subjects to be taxed. License taxes and other taxes on business or occupation, stamp taxes, taxes on franchises and privileges, are usually specific. . . . As regards all such taxes, the law by which they are laid is of itself a complete apportionment. Ministerial officers have nothing to do but to list the subjects of taxation; classify them where that is necessary; ascertain the number, weight, measurement, etc., . . . and collect the sum which the law has definitely fixed." Cool. Tax. (3d ed.) 412, 413.
"The decisive reason why it cannot be supported as a tax on property, in the sense in which that phrase is used in the constitution in the article cited, is that it is not `proportional'; that is, it is not laid according to any rule of proportion whatever, but is imposed only on the corporations designated in the act, without any reference to the amount required to be raised by taxation for public purposes, or to the actual property held by such corporation subject to taxation, or to the whole amount of property in the commonwealth liable to be assessed for the public service." Commonwealth v. Company, 12 Allen 298, 300.
The amount of the tax "is not fixed or determined by a valuation of the property of the bank. The average of deposits during a certain period includes only the amount credited to depositors. It does not embrace a valuation of the investments made by the bank, or the market value of its property. The tax is assessed wholly irrespective of investments, and without any regard to the profit or loss made or incurred by the corporation on *Page 588 the property in its possession or on the business which it has carried on. The average of deposits during the period of time denoted in the statute may not be equivalent to the whole property owned by the bank, exclusive of money invested in the securities of the government. The amount of the tax in no way depends on the aggregate of the investments of the bank. It must be the same whether the investments have been profitable or otherwise. No valuation of property is necessary to the assessment of the tax, and none is in fact made. How, then, in any just sense, can the assessment be deemed to be a tax on property?" Commonwealth v. Inst. for Savings, 12 Allen 312, 314.
Much of the reasoning contained in these authorities appears to to have been approved in this state. "The idea of proportional and reasonable or just and equal taxation is founded on the declaration in the bill of rights, that every member of the community is bound to contribute his share in the expense necessary to the protection of his property. This proportion is wholly destroyed by fixing a tax upon value on one kind of property, and a tax on gross receipts upon another. While the amount to be raised on other kinds of property depends upon the amount required for public objects, and the rate of taxation depends upon the amount of property within the taxing district and the public necessities, under the statute in question the rate is always the same. There can be no proportion or equality between that which is fixed and that which is uncertain and fluctuating." State v. Express Co., 60 N.H. 219, 245. The last sentence states the present case in a nutshell. There can be no proportion between the fluctuating railroad tax and the fixed savings bank tax.
The suggestion that the savings bank tax is laid upon the property of the depositors is the only reason which has been advanced for the holding which is peculiar in this state. In no case is the matter reasoned out. No attempt has been made to answer the convincing logic which has prevailed in substantially all other jurisdictions. If the conclusions here reached resulted from irresistible logic, they should be followed, even against the unanimous judgment of all other courts. If they did not so result, they should be abandoned.
It was first held that the assessment upon savings banks was a property tax. Bartlett v. Carter, 59 N.H. 105. The next step in the progress of the argument is the decision that all property taxes must be proportional. Boston etc. R. R. v. State, 60 N.H. 87, 96. Immediately after this follows the decision that our constitution provides "no warrant for the imposition of any other tax than one assessed upon a proportional and equal valuation of all the different kinds of property on which it is to be levied." State *Page 589 v. Express Co., 60 N.H. 219, 246. And then the question of the constitutionality of the savings bank tax was presented for decision. The court said: "The savings bank tax is an anomaly, resting on peculiar grounds of public policy, and is universally understood to have acquired the position of an exception to the constitutional rule of equality." Boston etc. R. R. v. State, 62 N.H. 648; Somersworth Savings Bank v. Somersworth, 68 N.H. 402.
The tax was sustained, as an anomaly, because of the universal understanding that such a tax was an exception to the constitutional rule of equality. It was anomalous because its name and kind had theretofore been excluded by the court from the New Hampshire constitutional scheme for taxation. There was no power to lay a franchise tax in this state. But by the universal understanding, such a tax was given a place in a constitutional scheme for taxation. It was an exception to the constitutional rule of proportional equality, as all specific taxes are. So while the court in this state generally denied the validity of these taxes that would be valid elsewhere, in this instance the tax was held to be valid. The universal understanding could not be ignored; yet the decision could not be reconciled with the previous utterances of the court. The court having declined to follow its argument to its legitimate conclusion, the logic of the situation called for a modification of the earlier cases. Whether the decision was intended to effect such a result, cannot be ascertained. The matter was disposed of with the brief declaration that the law was as stated. There is in all this at least a suggestion that the earlier decisions against the constitutionality of any tax not assessed by a proportion common to all other taxes may have been erroneous; and this doubt appears to have recent sanction. Thompson v. Kidder, ante, 89, 90.
But it is not necessary to now determine whether an excise on a franchise could or could not have been levied in 1880. By the amendment to the constitution adopted in 1903, taxes upon franchises are expressly provided for, and must now be valid if not repugnant to other constitutional limitations. Thompson v. Kidder, supra, 96. If before 1903 franchise taxes were anomalies which could not be classified under our constitution, they are so no longer.
Not being a property tax, this levy upon savings banks is not included in the class of taxes upon property. A tax upon a fixed basis of value, and at a fixed rate, has no logical relation to one upon the true value of property, assessed at a fluctuating rate adjusted to the varying public needs. "There can be no proportion or equality between that which is fixed and that which is *Page 590 uncertain and fluctuating." State v. Express Co. supra; Oliver v. Washington Mills, 11 Allen 268, 277.
It is said that this reasoning is fallacious because the figures can be combined and the rule of three can be applied to the result. Of course, any figures relating to any subject, or to an indefinite number of subjects, can be thus combined and an arithmetically correct result obtained. But much more than a question of arithmetic is here involved. It is the constitutional question of whether, in assessing taxes upon property (as distinguished from excises), the rule of proportional equality must be followed. The soundness of that rule has never before been doubted by the courts of this state. The same line of reasoning now adopted by the court was urged by counsel in Amoskeag Mfg. Co. v. Manchester, 70 N.H. 336, on the subject of including poll taxes in the determination of distribution of the common burden. It was there conceded that the defendants' mathematics were faultless; but the fact that there was error "in taking as the common burden to be proportioned the whole tax instead of the property tax" was then seen to be fatal to the proposed process. It is equally so here.
By the process here adopted by the majority of the court, the railroad tax is in part based upon an equal distribution of the public needs from year to year and in part upon an arbitrary rate. The result cannot be a tax based wholly upon an equal distribution of the annual burden. Unless it is true that A's property tax can be levied at the rate required for public uses and B's tax upon his property at a fixed rate, the process adopted is faulty and the conclusion reached is wrong. In Boston etc. R. R. v. State,62 N.H. 648 (where the question of the nature of the savings bank tax was involved), and again in Somersworth Bank v. Somersworth, 68 N.H. 402 (where the constitutionality of that tax was directly in issue), it was said that the savings bank tax is "an exception to the constitutional rule of equality." Any other tax apportioned according to this tax must in turn be contrary to that constitutional requirement.
The railroad tax is a property tax, and must be laid in accordance with the constitutional rule of equality. If the statute calls for a levy in violation of this rule, it is unconstitutional and void. Boston etc. R. R. v. State, 60 N.H. 87. The presumption is that the legislature intended to keep within constitutional limits. State v. Jackson, 69 N.H. 511. The mere fact that the statute can be construed to infringe the constitutional limitation is not enough to warrant such an interpretation of the legislative intent. The rule is imperative that such an intention is not to be implied. It must be clearly manifested. Leavitt v. Lovering, 64 N.H. 607.
A legislative intent to thus violate the rule of equality is not *Page 591 shown in this case. The act of 1881 was passed because the court had just said that the statute as it then existed was an offence against that rule. The evident and only purpose of the legislature was to correct that error. It is as certain that it did not intend to include what the constitution excluded, as that it intended to correct the former exclusion of that which the constitution included. In a peculiar degree, the thought that the statute be kept within constitutional limits must have been in the minds of those legislators. "And when the intention of the legislature is plain, it is the duty of the court so to construe the act as to carry out the intention if the language used will fairly admit of such construction." State v. Jackson, 69 N.H. 511, 526.
The case as to the insurance tax is still clearer. A stock fire insurance company pays "a tax of one per cent upon the amount of its paid-up capital on the first day of April." P. S., c. 65, s. 9. It is common knowledge that while the stock in some of these companies has been and is of large value, that in others has been worth nothing. But the same tax — one per cent upon the par value of the stock — is uniformly levied. It seems superfluous to extend the argument upon the proposition that this is not a property tax. The soundness of the conclusion appears to be conceded. Nor should the question be avoided upon the ground that the error has decreased the railroad tax but a few hundred dollars. In the year 1906, the board of equalization carried their tax rate to the third decimal. No good reason appears why this should not always be done in figuring these taxes, which deal with large amounts of property in single items.
If the exclusion of the insurance tax meant great and impractical labor in the computation of the railroad tax, there might be ground to justify its retention in the calculations. It might then well be said that the result was as near an approximation as could reasonably be arrived at. But the situation presents the reverse of this proposition. The inclusion of the insurance tax adds one more factor to the complications of the computation. Its exclusion would simplify the matter. In this posture of the affair, the erroneous inclusion which complicates cannot be justified on the plea of simplification; nor can the simplifying exclusion be refused because complications ought to be avoided. The question of the inclusion of this tax is directly involved in the present case. It should be decided. If, as the majority opinion suggests, the tax is to be differentiated from the savings bank tax, the reasons should be given.
The rights of the public service corporations are not infringed by the exclusion of the fixed savings bank and insurance taxes from the computation of their proportional shares of the public *Page 592 burden. Those heretofore unclassified anomalies are not considered in the assessment of property taxes upon unincorporated persons, and the public service companies' charters are neither statutory nor constitutional grounds for claiming an exemption. Boston etc. R. R. v. State, 62 N.H. 648. The demurrer should be overruled.