The question raised is whether the legislature included within the exemption intended railroad bonds secured by only of the real estate, but, also. of all the property, rights, all franchises of the railroad. In addition to the general rule, that the words used in a written instrument shall be given the signification attached to them by the parties, when ascertained specially provided that in the construction of all statutes "words and phrases shall be construed according to the common and approved usage of the language." P.S., c. 2, ss. 1, 2.
In the report of the bank commissioners, December 1, 1894, to the governor and by him laid before the legislature, the defendants' investments are classified. One class is "loans secured by local real estate"; another is "railroad bonds." Under the latter head are enumerated the securities for which exemption is claimed. A similar classification is used as to all other banks, not only in the report for that year, but in reports for other years. In their report for 1894, the commissioners argue with great earnestness the necessity of relief for the savings banks by taxation. Acting upon these suggestions, the legislation under consideration was adopted. The rate of taxation was one per cent to three fourths of one per cent, and the exemption from any tax was increased by the clause in question: "all . . . loans secured by mortgage upon real estate situated in this state *Page 537 made at a rate not exceeding five per cent per annum." Laws 1895, c. 108, s. 1.
As it appears that at the time of this act all savings banks held a class of investments known as "loans secured by local real estate," and also another class known as "railroad bonds," the described of one class in apt terms, without reference to the other, renders it probable the legislature intended to exempt those investments which by common and approved usage, evidenced by the report upon which the action was taken, were included within the class described, and not those which the same usage and custom described by other terms. That the common usage of language, as understood by the legislature, distinguishes between loans secured by mortgage of real estate and bonds, is evidenced by other provisions. Laws 1895, c. 105, s. 12; Ib., c. 114, s. 1, cl. 1, 9. As defendants claim an exemption, the burden is show that it is conferred by language open to no other conclusion. Phillips Academy v. Exeter, 58 N.H. 306, 307. Since it is probable that if the legislature had intended to included within the exemption certain classes of investments commonly denominated railroad bonds, as well as those known as loans secured by local real estate, apt language would have been used to define such exemption, the defendants are not entitled to a construction extending beyond the obvious import the meaning of the language used.
If there were any doubt as to the meaning of the act of 1895, weight might be given to the act of 1901 (c. 82) as a declaratory statute. Abbot v. Kimball, 68 N.H. 303. This act expressly excludes investments of the character in question from the benefit of the exemption claimed.
Whether the mortgages described, which include all the property, rights and franchises of the mortgagors as well as their interest in real estate, are real estate mortgages within the meaning of the statute, may not be entirely clear; but upon other grounds the meaning of the act is so plain it has not been thought necessary to investigate the question. The state is entitled to judgment.
Case discharged.
CHASE and BINGHAM, JJ., did not sit: the others concurred. *Page 538