Attorney Gen. v. Bank of Cape Fear

• Decision Date: 31 December 1847
• Citation: 5 Ired.Eq. 71,40 N.C. 71
• Parties: THE ATTORNEY GENERAL v. THE BANK OF CAPE FEAR.
• Court: North Carolina Supreme Court

5 Ired.Eq. 71

40 N.C. 71

THE ATTORNEY GENERAL

v.THE BANK OF CAPE FEAR.

Supreme Court of North Carolina.

December Term, 1847.

Under the Act of 1833, chartering the Bank of Cape Fear, the tax of “twenty-five cents, on each share of stock owned by individuals,” is payable out of the general funds of the Bank, the State not being entitled to any exemption from such tax in the distribution of the dividends.”

Where, by the penning of a statute, its meaning is rendered doubtful, long usage is a just medium, by which to expound it; upon the maxim, that the “ jus et norma loquendi” are governed by usage.

But if such usage is contrary to the obvious meaning of the words of the statute, it is not to be regarded.

Where the words are doubtful and the usage has been acquiesced in by both parties for a long series of years, it is conclusive.

The case of The State v. The Bank of Cape Fear, 1 Dev. & Bat. Eq. 216, cited and approved.

Cause removed by consent of parties from the Court of Equity of Wake County, at the Fall Term, 1847.

The information is filed to ascertain the fund, out of which the Bank shall pay the tax, imposed by the act of incorporation. The charter was granted in the year 1833, and amended in 1836. The 11th section provides, “that a tax of twenty-five cents, on each share of stock owned by individuals in the said Bank, shall be annually paid into the Treasury of the State, by the President or Cashier of said Bank, on or before the first day of October in each year.” The Bank soon went into operation, and, from that time to the filing of the information, has paid the tax out of the common corporate funds, without reference to the facts that profits were, or were not made. The information charges, that the tax was designed by the charter to be paid and collected from the individual stockholders, and that the State, as a stock-holder, was to suffer no diminution of dividends of profits by reason of the tax; and by the construction placed on the Acts by the Bank, and their practice, the State has been deprived of a large portion of the profits to which it is entitled as a stock-holder. The information does not seek an account of the taxes, wrongfully, as it is alleged, paid heretofore out of the dividends of the State, but asks that the true construction of the Act may be declared and established; and that the tax may hereafter be charged on each share of stock held by individuals and not on the mutual profits, as heretofore erroneously practised.

Attorney General, for the plaintiff .

W. H. Haywood and G. W. Haywood, for the defendant .

NASH, J.

From the wording of the acts, it might well be doubted what was the expectation of the Legislature, as to the fund out of which this tax was to be paid: whether out of the general corporate funds, or out of the dividends of profits, arising from the stockholders by the individual stock-holders, to the exemption of the stock owned by the State; in other words, whether the State, as a joint corporation, was bound to bear any portion of this burthen. We are of opinion, that the construction given to the contract, by the parties, and under which the tax has been heretofore paid by the Bank and received by the State, is the true one. Where, by the penning of a statute, its meaning is rendered doubtful, long usage is a just medium, by which to expound it; upon the maxim that the jus et norma loquendi are governed by usage. Shepard v. Gosnold, Vaug. Rep. 169. This rule governs in the construction of the fundamental law of the land, the Constitution of the United States. A cotemporary exposition practised and acquiesced in for a period of years--fixes the construction-- Stewart v. Laird, 1 Cranch, 299. But if such usage is contrary to the obvious meaning of the words of the Act, it...