The respondent is entitled to judgment; and so he would be, although the transaction of which the $25,000 note formed a part was, as the learned counsel for the appellants says, "a device to escape assessment and taxation." (Stilwell v. Corwin.,55 Ind. 433.) We are referred to no statute which prohibits a property owner from choosing between the embarrassment of a debt and submission to a burden, justly indeed imposed on all, and which, if he escapes, must altogether fall upon his neighbors.
The assessors, therefore, exceeded their necessary duty when, by inquisition, they so pressed the relator as to call from him a disavowal of that purpose and his innocence of intention to circumvent "the tax laws." The argument of the appellants is, in effect, to show that this was an ingenious falsehood. It touches, however, not the fact of an indebtedness, but the motive which led to its creation. The statute concerns itself only with the debt. It makes the "taxable personal property" of an individual, so much only of that species of his estate as remains "after deducting the just debts owing by him." (1 R.S., pt. 1, chap. 13, tit. 2, art. 2, § 9, subd. 4, p. 391.)
In view of this provision the assessors erred; for there is not a word of evidence to indicate that the debt of $25,000 was not, in every legal sense, a just one, and enforceable against *Page 145 the relator in the same manner as other debts contracted by him. That the property purchased with its proceeds stands as security for its payment and is itself non-taxable, cannot alter the result. This attribute of exemption was impressed upon it to promote its salability, and no doubt entered into and enhanced the price paid.
Nor do we perceive how, by a purchase in the manner narrated in the return, the buyer evades our law of taxation. The law does not prohibit it, therefore does not apply, and in such a case there can be no evasion. (Smale v. Burr, L.R., 8 C.P. 64.) Whether the law shall be so extended as to prevent similar transactions is for the legislature to determine.
I have not overlooked the provisions of section 5219 of theUnited States Revised Statutes, or those of chapter 596 of the Laws of 1880, to which we are referred by the appellants. The first (§ 5219) leaves shares in banking associations subject to taxation according to "the authority of the State within which the association is located," with certain restrictions of no importance here, while the other (Chap. 596, Laws of 1880), in enacting (§ 3) that "the stockholders in such association shall be assessed and taxed on the value of their shares of stock therein," expressly provides that they shall be included in the valuation of the personal property of such stockholders, and "that each stockholder shall be allowed all the deductions and exemptions allowed by law in assessing the value of other taxable personal property owned by individual citizens of this State." The claim of the relator and the order appealed from are not different from these provisions.
The order should, therefore, be affirmed, without costs.
All concur.
Order affirmed. *Page 146