State ex rel. Lewis v. Smith

Gillett, J.

This is an action of mandamus instituted by the appellant’s relators against the appellee. The appellee filed a demurrer to the application and alternative writ, which was sustained by the court below. To this ruling the relators excepted, and refused to plead further, and from the final judgment against them, that was subsequently. rendered, they prosecute this appeal.

Counsel discuss but one question in this case, namely, the constitutionality of an act of the General Assembly of this State entitled, “An act concerning the taxation of real estate encumbered by mortgage, and declaring an emergency.” Acts 1899, p. 422, §8417a et seq. Burns 1901, §6272a et seq. Horner 1901. The first three sections of the act are as follows:

Section 1. “Be it enacted by the General Assembly of the State of Indiana, That any person being the owner of real estate liable for taxation within the State of Indiana, and being indebted in any sum, secured by mortgage upon real estate, may have the amount of such mortgage indebtedness, not exceeding $700, existing and unpaid upon the first day of April in any year, deducted from the assessed valuation of mortgage premises for that year, and the amount of such valuation remaining after such deduction shall have been made shall form the basis for assessment and taxation for said real estate for said year. Provided, That no deduction shall be allowed greater than one-half of such assessed valuation of said real estate. Section 2. Any person desiring to avail himself, or herself, of the provisions of this act shall, between the first day of March and the first day of May of each year, file with the auditor of the county wherein said real estate is situated a sworn statement of the amount of such mortgage indebtedness existing and unpaid on the first day of March of that year, giving the name and residence of the mortgagee, and shall also give the name and residence of the assignee or bona fide owner or bolder of said mortgage, if known, and if not known, said person shall state that fact, and shall also state the record and page where said mortage is recorded, and a brief description of the real estate upon which such incumbrance exists. Section 3. the county auditor with whom such statement is filed, in case the money, notes or credits evidenced by such mortgage indebtedness be liable for taxation in any county in the State of Indiana, other than the one wherein such real estate is situate, shall immediately certify and transmit a copy of such sworn statement to the auditor of the county wherein the mortgagee, assignee or bona fide bolder or owner of said mortgage resides, or wherein the money, notes or credits evidenced by such mortgage is otherwise taxable.” The fourth section of the act prescribes a penalty for wilfully making a false statement under section two thereof. The fifth and last section declares the existence of an emergency for the- immediate taking effect of the act.

Counsel for appellee claim that the act in question is unconstitutional and they especially insist that it contravenes §1 of article 10 of our State Constitution. That section is as follows: “The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation; and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only, for municipal, educational, literary, scientific, religious, or charitable purposes, as may be especially exempted by law.”

We approach the consideration of this case with a deep sense of its importance, not only because constitutional questions are involved, but because we realize that this act, if upheld, will be a large factor in our revenue system. The people, in their grant of power to the agencies of government, ordained that “the powers of government are divided into three separate departments: the legislative, the executive, including the administrative, and the judicial.” Constitution §1, art. 3. These departments are coordinate. The Constitution requires that any person elected or appointed to any office thereunder shall, before entering on the duties thereof, take an oath or affirmation to support such Constitution. §4 art. 15. The judiciary do not lay claim to a conscience that is quickened beyond that of any other official. The courts do not sit for the purpose of revising or obstructing legislative action, but to enforce the legislative will. Where, however, an enactment of the General Assembly falls without the domain of legislative power, or impinges on the limitations with which the people, in their sovereign capacity, have hedged the grant of legislative power about, a court that sits to apply the law as between litigants refuses to enforce it, because the judge, acting on the responsibility of his oath, must enforce the will of the people as declared in their primal social compact, rather than the will of their agent in another department of the government. The task of declaring a legislative enactment unconstitutional is at once both solemn and delicate, and, while the courts will not decline this responsibility, yet they approach such a duty in a spirit of profound caution and circumspection, and with a disposition to enforce the legislative will by resolving all ultimate reasonable doubts in its favor. It is with this disposition of mind that we approach this question.

The power of taxation is an incident of sovereignty, and is possessed by the government without being expressly conferred by the people. State Board, etc., v. Holliday, 150 Ind. 216. The power belongs to that class of powers known as political powers, and while, in the genesis of popular government, it was occasionally exercised by the executive branch of the government, yet it is now well settled that the power of taxation is purely a legislative function. State Board, etc., v. Holliday, supra; Union Tel. Co. v. Mayer, 28 Ohio St. 521. “The extent to which it [the taxing power] shall be exercised, the subjects upon which it shall be exercised, and the mode in which it shall be exercised, are all equally within the discretion of the legislatures to which the states commit the exercise of the power. The discretion is restrained only by the will of the people, expressed in the state constitutions or through elections, and by the condition that it must not be so used as to burden or embarrass the operations of the National Government.” Lane County v. State of Oregon, 7 Wall. 71, 77, 19 L. Ed. 101. And see, also, Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147, 160, 59 Am. Dec. 759. This, doctrine is even more forcibly stated by Judge Cooley in his work on Taxation (p. 5). He there says: “Everything to which the legislative power extends may he the subject of taxation, whether it he person or property, or possession, franchise or privilege, or occupation or right. Nothing hut express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the legislature in its discretion shall at any time select it for revenue purposes. And not only is the power unlimited in its reach as to subjects, hut in its very nature it acknowledges no limits, and may he carried to any extent which the government may find expedient. It may therefore he employed again and again upon the same subjects, even to the extent of exhaustion and destruction, and may thus become in its exercise a power to destroy. If the power he threatened with abuse, security must he found in the responsibility of the legislature which imposes the tax to the constituency who are to pay it. The judiciary can afford no redress against oppressive taxation, so long as the legislature, in imposing it, shall keep within the limits of legislative authority and violate no express provision of the constitution. The necessity for imposing it addresses itself to the legislative discretion, and it is or may he an urgent necessity which will admit of no property or other conflicting right in the citizen while it remains unsatisfied.”

Our State Constitution does, however, contain some limitations on the legislative authority to tax. These limitations are found in the section of the Constitution hereinbefore quoted, and in another section thereof, to which attention will hereafter he directed. Does the act in question violate the constitutional requirement of equality ?

It is the theory of every republican government that taxes should he levied equally, hut this is impossible, even in the simplest state of society; and the difficulty becomes more and more pronounced as our civilization becomes more complex, because the circumstances and pursuits of the people become more diversified. “A just and perfect system of taxation,” says Chancellor Kent, “is yet a desideratum in civil government.” (2 Com., 332). “Perfectly equal taxation,” it has again been said, “will remain an unattainable good as long as laws and government and men are imperfect.” Sharswood, J., in Grim v. School District, 57 Pa. St. 433, 437, 98 Am. Dec. 237.

As a general rule, taxes due on property are not debts of the owner thereof. Thompson v. McCorkle, 136 Ind. 484, 43 Am. St. 334. But it is nevertheless competent for the legislature so to provide. Snipe v. Shriner, 44 N. J. L. 206. If it can be fairly said that the equality limitation in the Constitution was designed to prevent inequalities in the assessment of different tracts of real estate, considered as a matter wholly apart from the interests of their owners therein, then there would be room for serious doubt as to the justification of legislation that discriminates within the class, and which permits a deduction of $700 in the assessment on one tract of mortgaged real estate, while that right is wholly denied as to an adjoining unincumbered tract of real estate. We do not think, however, that the people of Indiana, in adopting the Constitution of the State, had any such view. Taxes must be paid by persons, unless property is sacrificed therefor; and, moreover, the whole idea of values is one of the artificialities of life. It therefore follows that, when the people put the equality limitation upon the power to tax, they intended thereby to protect the owners of property. We must therefore regard the limitation that taxation must be equal as being satisfied when there is no discrimination as between taxpayers. Clearness is necessary here, however; and we therefore suggest, by way of emphasis, that our present statements relate only to the requirement of equality in taxation. Still dealing with this particular portion of the limitation, we next call attention to the fact that the selection of some objects for taxation, and the omission of others, or even the selection of but a few objects for taxation, does not necessarily disturb the rule of equality, provided that the result of the imposition of the burden is so to diffuse itself ultimately among those who ought to bear their share of it as not unreasonably to lay it on particular classes of taxpayers, to the ease of the rest. “Let it reach all of a class,” says Judge Cooley, “either of persons or things, it matters not whether those included in it be one or many, or whether they reside in any particular locality or are scattered all over the state. But when, for any reason, it becomes discriminative between individuals of the class taxed, and selects some for an exceptional burden, the tax is deprived of the necessary element of legal equality, and becomes inadmissible.” Cooley on Taxation, 169.

We may freely grant that, with this act in force, it will produce inequalities as between taxpayers in any given year, but we confidently affirm that it is beyond the ken of the most astute to say who will receive the most benefit from the act in the future. If one man gains an advantage over his neighbor this year by means of this statute, it cannot be said that the latter’s property affairs may not hereafter be in such condition that he will not receive more of benefit from the statute than the former. As the act is presumed to represent a constitutional exercise of the legislative power, it devolves upon those who would assail it as unequal or class legislation to point out what class of persons will hereafter be prejudiced thereby. Laws are rules of action projected through and beyond the multifarious interests and affairs of mankind; and it is too much to- affirm that they must at all times operate fairly, as applied to any individual, and particularly, as we have shown, is it too much to affirm that a tax law must always so operate.

If the power of taxation is a legislative function, and if it be true that in any system of taxation, however wisely framed, disproportionate shares of the public burden will occasionally be thrown on some persons, it must needs follow that the courts must admit that there exists in the General Assembly a large measure of discretion in the enactment of a scheme of taxation. To borrow something from the language and thought of another court: It is the peculiar duty of a court to keep the first lines of the constitution clear, and not to stretch its power to correct legislative abuses. We do not mean to hold that statutory provisions relative to the levying of taxes might not so far on their face manifest, by invidious discriminations between persons or property, their unequal and unjust character, as to call on the courts to refuse to enforce them; but as observed by Gibson, C. J., in Kirby v. Shaw, 19 Pa. St. 258, 261, “It is illogical to argue from an extreme case; or from the abuse of power to a negation of it. Every authority, however indispensable, may be abused; and if it might not, it would be powerless for good.”

As to the requirement of uniformity, we have to say that the act in question purports to be a law that is uniform throughout the State, and, as it permits all persons to take advantage of it when their circumstances bring them within its operation, we are of the opinion that it does not violate that requirement of the Constitution. Cleveland, etc., R. Co. v. Backus, 133 Ind. 513, 18 L. R. A. 129; Pittsburgh, etc., R. Co. v. Backus, 133 Ind. 625; Gilson v. Board, etc., 128 Ind. 65, 11 L. R. A. 835.

It is our judgment, that every limitation upon the power to tax that is found within the limits of §1 of art. 10 of our Constitution was intended, at least primarily, to protect the taxpayer; but it must be admitted that the latter part of the section, requiring the General Assembly to prescribe such regulations as shall secure a just valuation for taxation of all property that the Constitution does not authorize to be exempted, looks to still further protecting the taxpayer in the matter of equality, by prescribing a duty upon the General Assembly to provide for the securing of a just valuation for taxation of all property, except as aforesaid. The decisions of this court have thoroughly committed it to the proposition that legislative enactments that purport to grant exemptions not falling within the class of exemptions mentioned in the Constitution are void. State, ex rel., v. Workingmen’s, etc., Assn., 152 Ind. 278; Harn v. Woodard, 151 Ind. 132; Deniston v. Terry, 141 Ind. 677; Warner v. Curran, 75 Ind. 309; State, ex rel., v. City of Indianapolis, 69 Ind. 375, 35 Am. Rep. 223.

The enactment in question cannot be supported as an exemption law. It is to be remembered, however, that the regulations that the General Assembly are required to enact must look to the securing of a just valuation, as well as to a valuation of all property that the Constitution subjects to taxation. We cannot subordinate the one requirement to the other. Indeed, it is a rule of construction that a constitution is an instrument of such high and solemn import that every word thereof is to be regarded as though it was hammered into place. The question therefore arises whether it is competent for the General Assembly to enact a law that provides for the taxation of real estate according to the actual interest of the owner therein, or that, at least, partially effectuates that object, under that provision of the Constitution that requires that the regulation shall be just.

Many cases uphold the right of a state to enact a law that apportions the value of land for taxation upon the basis of the actual interests of the mortgagor and mortgagee, respectively, therein. Savings, etc., Society v. Multnomah County, 169 U. S. 421, 18 Sup. Ct. 392, 42 L. Ed. 803, and cases there cited. This amounts, in effect, to taxing a mortgage at the situs of the land, and such a statute has been held valid even as against non-resident mortgagees. Savings, etc., Society v. Multnomah County, supra. The enactment in question, although it does not operate to transfer the situs of the debt, amounts to an apportionment of the land value for taxation, as between the mortgagor and the mortgagee, except when the mortgage is held by a non-resident, or is payable to some public and non-taxable fund. May the General Assembly enact such legislation in its endeavor to be just ? We do not mean to intimate that no law can be upheld that in its operation may result in duplicate taxation. As stated by Judge Cooley, in his work on Taxation (page 223): “We make out, therefore, no' conclusive case against a tax, when we show that it reaches twice the same property for the same purpose. This may have been intended, and in many cases, at least, is admissible.” But if A sells a tract of land to B for $1,000, and takes a mortgage back for the entire purchase money, and if the mortgagee be a resident of this State, there is brought into existence, in the absence of the enactment in question, additional taxable property to the amount of $1,000, although it is apparent that by such a transaction the State’s wealth has not been increased a farthing. To what extent the State's assessment sheet is augmented by duplicate taxation, courts, that act on evidence cannot ascertain. A public tribunal could not enter on such an inquiry, unless, like a legislature, it was authorized to act on common repute and opinion.

We are disposed to place stress upon the fact that the lien which may be made the basis of a deduction is a mortgage lien, as distinguished from other liens upon real estate, general and special. While it is true that for most purposes a mortgage will he treated as a mere security for a debt, yet, whenever it is necessary to render effective the rights of the parties, the courts still treat mortgages as forms of defeasible sales. Vinnedge v. Shaffer, 35 Ind. 341; United States, etc., Co. v. Harris, 142 Ind. 226; Citizens State Bank v. Harris, 149 Ind. 208; Savings, etc., Society v. Multnomah County, supra. As observed by the Supreme Court of the United States in the case last cited: “If the law treats the mortgagee’s interest in the land as real estate for his protection, it is not easy to see why the law should forbid it to be treated as real estate for the purpose of taxation.”

Tn our opinion, the General Assembly may enact a statute like the one in question without violating the provision that it shall prescribe such regulations as shall secure a just valuation for taxation of all property except such property as the Constitution authorizes to be exempted. Gross valuations are not required. As said by this court in Florer v. Sheridan, 137 Ind. 28, 41, 23 L. R. A. 278: “Section 1, article 10, supra, does not say the gross [our italics] amount of all notes, accounts, and other choses in action shall be taxed, and we can not so construe it without perverting its language and obvious meaning.” In our opinion, the case last cited is entirely in point, for as it is well settled that, under a constitutional provision requiring all property to be taxed, it is not competent to exempt solvent credits; yet this court there held that the legislative authority was sufficient to warrant the deduction of tona fide indebtedness from the total amount of the notes, accounts, and other choses in action embraced within the taxpayer’s schedule. We, therefore, perceive no difference in principle between this case and the Florer case. As the court there said: “Deductions and exemptions are two separate and distinct things, having no connection. A deduction is the taking of the subtrahend from the minuend. It is a subtraction. Exemption is an immunity or privilege — it is freedom from a charge of burden to which others are subject.” Upon the subject of an allowance for debts, Judge Cooley says: “Revenue laws sometimes permit taxpayers to deduct from the property to be taxed the debts owing by them. Sometimes the deduction is from credits only; sometimes from mortgages; sometimes from the aggregate of personal estate. * * * The allowance is not in any proper sense an exemption, but is made by way of reaching the just amount of taxable property.” Cooley on Taxation, 174. This general doctrine is also recognized by Mr. Desty. 1 Desty on Taxation, 551.

The enactment in question, while it does not go as far as it might possibly do in the direction of subjecting mortgages to taxation, does not, it is to be observed, relieve any mortgage credit from taxation that was taxable before; and the mere fact that there may have been an omission to extend the power of taxing mortgages will not invalidate the provision for a deduction from mortgaged lands, any more than the adjudged omission to provide for the taxation of paid up life insurance policies will avoid the entire legislative scheme of taxation.

We have now reached the question whether the act violates §22 of art. 4 of the State Constitution. That section provides that: “The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * Tor the assessment and collection of taxes for State, county, township or road purposes.” It cannot be claimed that the act is local, but the question whether it is special challenges our consideration. This court, in Indianapolis St. R. Co. v. Robinson, 157 Ind. 232, quoted the following statements, found in the case of State v. Parsons, 40 N. J. L., 1: “Interdicted, local and special laws are all those that rest on a false or deficient classification; their vice is that they do not embrace all the class to which they are naturally related; they create preference and establish inequalities; they apply to persons, things or places possessed of certain qualities or situations, and exclude from their effect other persons, things or places which are not dissimilar in these respects.” Granting, but not deciding, that §1 of art. 10 of our Constitution and §22 of art. 4 of that instrument overlap in the effort to put checks upon the otherwise supreme and peremptory power of taxation, we feel that this opinion has already vindicated the act from the claim that it is discriminative as between taxpayers.

The first words in the body of the act are: “Any person desiring to avail himself, or herself, of the provisions of this act, shall”, etc. The words import universality. They are broad enough to include all persons. In Gilson v. Board, etc., 128 Ind. 65, we find the following: “It is held that a statute which is of general and uniform operation throughout the State, and operates alike upon all persons, under the same circumstances, is not subject to the objection that it is special or local legislation. State, ex rel., v. Reitz, 62 Ind. 159; McLaughlin v. Citizens, etc., Assn., 62 Ind. 264; Heanley v. State, 14 Ind. 99; Elder v. State, 96 Ind. 162.” Again, it was said by Frazer, J., in Hingle v. State, 24 Ind. 28, 31: “What is a special act ? It is such as at common law the courts would not notice, unless it were pleaded and proved like any other fact.” Mr. Sutherland, in his work on Statutory Construction, collects a large number of cases relative to prohibited special legislation, and his text enunciates opinions in accord with those expressed in State v. Parsons, supra. This act does not, however, amount to a special law, if we accept the view of that learned author as to what constitutes special legislation, for he says (§129) : “The prohibition is in the way of legislation for individual eases. It is equally fatal to such legislation though it be general in form. If a statute is plainly intended for a particular case, and looks to no broader application in the future, it is special or local, and, if such laws are prohibited on the subject to which it relates, is unconstitutional. The lineaments by which such cases are to be distinguished are usually so special that a law confined thereto would be anticipated to have no effect from the antecedent improbability of such a case arising. When, therefore, it is found to fit such a special case, it is deemed to have been enacted solely for it.” Even if we were inclined to commit this court to the doctrine of State v. Parsons, supra, we should nevertheless be compelled to hold that the act we have been considering does not thereby stand condemned.

It has been suggested that this act is invalid by reason of the provision of the fourteenth amendment to the federal Constitution relative to the right to the equal protection of the laws; but as a discussion of this subject upon our part would require a reiteration, to some extent, of what has been said heretofore, we are not- inclined to give further expression of our views upon this subject. As particularly applicable, however, to this question, as well as to some of the other questions that we have discussed heretofore, we quote the following statements from the Supreme Court of the United States in the case of Magoun v. Saving Bank, 170 U. S. 283, 292, 18 Sup. Ct. 594, 42 L. Ed. 1037: “Is the act open to this criticism? The clause of the fourteenth amendment especially invoked is that which prohibits a state denying to any citizen the equal protection of the laws. What satisfies this equality has not been and probably never can be precisely defined. Generally it has been said that it 'only requires the same means and methods to be applied impartially to all the constituents of a class, so that the law shall operate equally and uniformly upon all persons in similar circumstances’. Kentucky Railroad Tax Cases, 115 U. S. 321, 6 Sup. Ct. 57, 29 L. Ed. 414. It does not prohibit legislation which is limited, either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions, both in the privilege conferred and the liabilities imposed. Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. 350, 30 L. Ed. 578. Similar citations could be multiplied. But what is the test of likeness and unlikeness, of circumstances and conditions ? These expressions have almost the generality of the principle they are used to expound, and yet they are definite steps to precision and usefulness of definition, when connected with the facts of the cases in which they are employed. With these for illustration it may be safely said that the rule prescribes no rigid equality and permits to the discretion and wisdom of the state a wide latitude as far as interference by this court is concerned. For with the impolicy of a law has it concern. Mr. Justice Field said in Mobile County v. Kimball, 102 S. 691, 26 L. Ed. 238, that this court is not a harbor in which can be found a refuge from ill-advised, unequal, and oppressive state legislation. And he observed in another case: ‘It is hardly necessary to say that hardship, impolicy or injustice of state laws is not necessarily an objection to their constitutional validity’. * * * Of taxation, and the case at bar is of taxation, Mr. Justice Bradley said, in Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533, 33 L. Ed. 892, and Mr. Chief Justice Fuller in Giozza v. Tiernan, 148 U. S. 657, 13 Sup. Ct. 721, 37 L. Ed. 599, ‘that the fourteenth amendment was not intended to compel the state to adopt an iron rule of equal taxation.’ The range of the state’s power was expressed by Mr. Justice Bradley, as follows: ‘It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon' different trades and professions, and vary the rates of excise-upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. [Our italics.] All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, or the people of the state framing their constitution’. And so Mr. Justice Miller, speaking for the court in Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616, said: ‘The federal Constitution imposes no restraints on the state in regard to unequal taxation’. The court, through Mr. Justice Lamar, in Pacific Express Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250, 35 L. Ed. 1035, was. equally emphatic. Lie said on page 351: ‘This court has repeatedly laid down the doctrine that diversity of taxation, both with respect to the amount imposed and the various species of property selected either for bearing its burdens or from being exempt from them, is not inconsistent with a perfect uniformity and equality of taxation in the proper sense of those terms; and that a system which imposes the same tax upon every species of property, irrespective of its nature or condition or class, will be destructive o'f the principles of uniformity and equality in taxation and of a just adaptation of property to its burdens’. And it was said in Merchants Bank v. Pennsylvania, 167 U. S. 461, 17 Sup. Ct. 829, 42 L. Ed. 236: ‘Indeed, this whole argument of a right under the federal Constitution to challenge a tax law on the ground of inequality in the burdens resulting from the operation of the law is put at rest by the decision on Bell’s Gap R. Co. v. Pennsylvania, supra.’ ” See, also, as bearing on the question as to the application of the fourteenth amendment, Cass Farm Co. v. City of Detroit, 181 U. S. 396, 21 Sup. Ct. 644, 45 L. Ed. 914; City of Detroit v. Parker, 181 U. S. 399, 21 Sup Ct. 624, 45 L. Ed. 917; Cleveland, etc., R. Co. v. Backus, 133 Ind. 513; Pittsburgh, etc., R. Co. v. Backus, 133 Ind. 625.

It may be a matter of grave doubt whether public policy is conserved by an enactment that substitutes net values for gross values, upon a species of property upon which the State must largely depend for its maintenance, but we cannot run a race of opinion with the legislature upon this subject.

Counsel for appellee dwell at some length upon some of the crudities of the act in question. We do not deem it necessary to consider such matters. What we affirm is that the act is valid. It follows, therefore, that the court below erred in sustaining appellee’s demurrer to the application and alternative writ.

Judgment reversed, with instructions to the court below to overrule the demurrer to the application and alternative writ, and for further proceedings not inconsistent with this opinion.

Dowling and Monks, JJ., dissent.

Dissenting Opinion.