Bank v. Commonwealth

• Citation: 10 Pa. 442
• Parties: The COMMONWEALTH <I>v.</I> The EASTON BANK. The EASTON BANK <I>v.</I> The COMMONWEALTH.
• Decision Date: 05 July 1849
• Court: Pennsylvania Supreme Court

10 Pa. 442

The COMMONWEALTH v. The EASTON BANK.

The EASTON BANK v. The COMMONWEALTH.

Supreme Court of Pennsylvania.

July 5, 1849.

IN error from the Common Pleas of Dauphin.

Alricks and Reeder, for the bank.—The act of 1811 is in derogation of the common law, and to be construed strictly; it confines the jurisdiction of the auditor to public accounts. Here there was none. It was either a tax due or paid. The act of April 1, 1835, if it included the bank, was repealed by that of April 7, which contains a similar tax clause, but postpones its operation. Unless this was so, the latter act was unnecessary. Such was the construction of the accounting officers until 1847. But if it did include this bank it was unconstitutional, for the charter had not then expired; and it was granted on conditions, one of which was the payment of a certain tax. The 9th section of the act of 1824, gives no right to charge an additional price for the franchise. This contract was then violated, and the act is void: 4 Wheat. 627; 1 Greenl. 79; 6 Barr, 379; 9 Cranch, 52; 8 Wheat. 1; 2 Kent, 306; 2 Mass. 146; 9 Wend. 351; 17 John. 195; 2 Stew. 30; 3 Pick. 342; 10 Conn. 522; 6 Greenl. 112; 2 Penna. 184; 1 Atk. 264; 1 R. 189. In 4 Pet. 514, the bank had a perpetual charter, and nothing was paid for it. It was agreed that, had there been a stipulation not to tax, it would have been void: Ib.; 7 Cr. 164. Here there was an implied waiver by the stipulation for a fixed price: 12 Mass. 252. The account had virtually been settled by the payment of a sum, which was accepted, in full satisfaction, and could not, therefore, be opened.

H. Alricks and McCormick, for the commonwealth.—The act of 1811 extends to all claims by the state on any person or corporation, and hence includes this case. The act of April 1 was a general law; that of April 7 was a special law. The fact that a provision contained in the former is embodied in the latter, affords no ground to argue that it is thereby repealed, especially when the operation of the latter is deferred. The act was constitutional, for though the franchise cannot be taxed, the corporate property may be: 3 How. 133. This right has been uniformly sustained: 1 Hill, 616; 2 Ib. 353; 25 Wend. 686; 10 Ohio, 91; 2 Gill, 487. The right must have been explicitly relinquished to be lost: 12 Mass. 252; 4 Pet. 514.

The commonwealth is entitled to twelve per cent. interest, under the act of 1824, for the court below was a court of competent jurisdiction; unless this were so, the appeal was a nullity, and the account as settled remains in force. The act of 1835 refers to the existing law. So far as the rate of interest was regulated in such cases, that was the act of 1824. Clearly, however, six per cent. from the default should have been allowed: 6 Bin. 159; 3 W. & S. 271.

July 5, 1849. BELL, J.

These writs of error bring up the same record, and may conveniently be considered together.

The first point presented is, whether the accounting officers of the commonwealth are invested with power to state an account between the state and the Easton Bank, under the provisions of the act of 30th of March, 1811. The language of the 1st section of this act, conferring jurisdiction, is very broad and comprehensive. "All accounts between the commonwealth, and any person or persons, body politic or corporate, as well as those with officers of the revenue as other persons intrusted with the receipt, or who have, or hereafter may become possessed of public money, &c., shall be examined and adjusted by the auditor-general, according to law and equity." The 3d section speaks of any public account examined and adjusted, and the 11th provides for an appeal by any person dissatisfied with the settlement of their accounts. It is obvious, the object of the law-makers was to bring within the adjusting authority of the public agents, the settlement primâ facie of all pecuniary claims made by the government against persons, natural or artificial, springing from any source whatever; as well as all demand made by such persons against the state. The evil felt, was the difficulty of ascertaining the rights and liabilities of the public, except through the tedious, and frequently, utterly inadequate process of a suit at law; the remedy proposed, was the erection of a tribunal competent to decide many difficulties, which are apt to spring from matters of account, without investing it with the power of final judgment. To effect this, authority broad enough to cover every case that might arise was necessary, and, accordingly, language sufficient for this purpose was employed. As the statute is remedial, and in practice found to be very beneficial, the courts have been liberal in its construction. Its operation has not been confined, as the bank seems to think it ought, to technical accounts; but has been extended to embrace every case where one retains public money which ought to be paid into the public coffers, no matter under what appellation received. Whether called tax, or dividends, or portions of fees of office, the sums received for, and retained from the public use, fall within the purview of the act: Commonwealth v. Reitzel, 9 W. & S. 109; Hutchinson v. Commonwealth, 6 Barr, 124. Indeed, without this power residing somewhere, it would be extremely difficult, if not impossible, to conduct the financial affairs of government, especially during such periods of depression and distress as, for some years past, have almost paralysed the energies of Pennsylvania. It ought not, therefore, to be lightly yielded to nice verbal criticisms, or upon the suggestion of a possible abuse of authority; such apprehensions are, in practice, found to be fallacious, for the act itself offers ample means of redress. It is only the obstinate or the careless who may be exposed to injury; and even these, in the actual working of the system, are found to be put to little hazard.

We have, for these reasons, and others that might be added, felt not the slightest hesitancy in pronouncing, that the ascertainment of balances due from banks, for taxes imposed on dividends declared, is within the province of the auditor-general and state treasurer.

The sums here in controversy, are officially asserted by these officers to be due from the Easton Bank to the state, under the provisions of the act of April 1st, 1835. The bank resists the claim on two grounds. The first of these is, that the act is inapplicable to her, and the second, that if even by its terms found to be applicable, it is, under the circumstances brought to view, unconstitutional. Each of these positions is based upon other enactments. The act of April 1st directed that, thereafter, the several banks of the commonwealth, then subject by law to the payment of a tax on their dividends, should pay into the treasury, in the manner directed by law, a graduated tax, increasing by a regular progression from 8 to 11 per cent: the amount being determined by the rate per cent. of profits declared in any year. Before the passage of this statute, the Easton Bank, in common with the other banks of the state, was subjected by law to the payment of 8 per cent. of the whole amount of the dividend declared during the preceding year; to be transmitted to the state treasurer by the officers of the bank. The Easton Bank, therefore, falls precisely under the terms of the act of 1835. But, though thus within its language, it is asserted she is withdrawn from its influence, by force of the act of April 7th, 1835. This is entitled "An act to recharter the Easton Bank;" and does, accordingly, extend her charter for fifteen years, from the first Wednesday in May, 1837. The second section provides, that "the bank, whose charter is hereby extended, shall, after the first Wednesday in May, in the year 1837, and thenceforth during the full time for which its charter is extended, pay into the treasury of the commonwealth in the manner now directed by law," the same tax as was imposed by the prior act of the 1st of April. The argument is, that these two acts are incompatible, so far as they relate to the payment of tax, and, therefore, the latter operates as a repeal of the former, by necessary implication. This argument is based upon the fact that, while the first of these statutes directs the payment of the graduated tax, by all the banks, immediately after the date of its enactment, the younger of them appoints the payment, so far as the Easton Bank is concerned, to commence after the first Wednesday in September, 1837, leaving an interval of more than two years between the respective periods; which, it is thought, involves an irreconcileable inconsistency. If this be so, doubtless it works a repeal of the elder statute, for the maxim is, leges posteriores priores contrarias abrogant. But, it is said, this rule is to be received with great caution, for it is in general necessary that the intention to repeal be expressed in clear and unambiguous language, and not left to be inferred from a subsequent statute. And the maxim is subject to the restriction, that an ancient statute will be impliedly repealed by a more modern one, only when the latter is couched in negative terms, or when the matter is so clearly repugnant that it necessarily implies a negative; for implied repeals are not favoured by law: 2 Dwarr. on Stat. 638, 673; Williams v. Pritchard, 4 T. R. 2, 4; Rix v. Borton, 12 A. & E. 470. Where both acts are merely affirmative, and the substance such that both may stand together, both shall have a concurrent efficacy: 1 Bl. Com. 89; Dr. Foster's case, 11 Rep. 57. In our case, it is to be observed, the posterior statute contains no negative words. It ordains that the tax shall be paid after May, 1837, but it does not say it shall not be paid before that period. It is, therefore, not clearly repugnant with the first act, which provides for an earlier payment, and no more. They are both merely affirmative laws, and may...