Bell Gap Co v. Commonwealth of Pennsylvania

Decision Date10 March 1890
Citation134 U.S. 232,10 S.Ct. 533,33 L.Ed. 892
CourtU.S. Supreme Court

James W. M. Newlin, Wayne MacVeagh, M. E. Olmsted, and W. B. Lamberton, for plaintiff in error, and other persons having similar cases on the docket.

J. F. Sanderson and W. S. Kirkpatrick, for defendant in error.


Motion is made in this case to revoke the allocatur of the writ of error, and to quash the writ, and, in the alternative to affirm the judgment. The first motion is based on the assumption that the writ was improperly allowed by the judge, and questions the propriety of his action. It is probable that the counsel who makes the motion does not intend it in that sense, but is merely unfamiliar with the practice of this court, by which the ordinary proceeding to vacate a writ of error is a motion to dismiss it. In the present case we think that the writ was demandable, and cannot be dismissed, as will more fully appear from the following statement: By the law of Pennsylvania, all moneyed securities are subject to an annual state tax of three mills on the dollar of their actual value, except bonds and other securities issued by corporations, which are taxed at three mills on the dollar of the nominal or par value. If the treasurer of a corporation fails to make return of its loans, as required by law, the auditor general makes out and fie § an account against the company, charging it with the tax supposed to be due. This account, if approved by the state treasurer, is served upon the corporation, which must pay the tax within a specified time, or show good cause to the contrary. If it objects to the tax, it is authorized, in common with all others who are dissatisfied with the auditor's stated accounts, to appeal to the court of common pleas of the county where the seat of government is, (at present Dauphin county,) which appeal is served on the auditor general, and by him transmitted to the clerk of said court, to be entered of record, subject to like proceedings as in common suits. A declaration is then filed on the stated account in behalf of the state, and the cause is regularly tried. In the present case, on failure of the company (The Bell's Gap Railroad Company) to make return except under protest, the auditor general made out an account against it, containing the following charge:

Nominal value of scrip, bonds, and

certificates of indebtedness owned by

residents of Pennsylvania, $539,000,

—tax, three mills................. $1,617 00 The company thereupon tendered an appeal, which was filed in the court of common pleas of Dauphin county, a declaration was filed on the part of the state, and the cause was tried by the court, a jury being waived. The appeal filed by the corporation (which was the basis of the proceedings in the court) contained eight grounds of objection to the tax. Most of these objections were founded upon the constitution or laws of Pennsylvania, and need not be noticed here. The second objection, which refers to the constitution of the United States, was as follows, to-wit:

'(2) The report of the company's treasurer was made under protest, and does not constitute an assessment, and the tax sought to be imposed on so much of the company's loans as the commonwealth claims to be held by residents of Pennsylvania for their nominal or face value, which varies from the market value on account of the differing rates of interest, etc., is illegal, and the said tax cannot be lawfully deducted by the company's treasurer from the interest payable to the holders of said loans, and the commonwealth's demands contravene section one of the 14th amendment to the constitution of the United States, for the following reasons.' Among the reasons then assigned are (1) that the nominal value of the bonds is not their real value; (2) that the owners of the bonds have no notice, and no opportunity of being heard; (3) that the company is taxed for property it does not own; (4) that the deduction of the tax from the interest payable to the bondholders is taking their property without due process of law, and denies to them the equal protection of the laws, since all other personal property in the state is taxed at its actual value, and upon notice to the owners. The seventh objection is as follows: '(7) The tax is void, as impairing the company's obligation to its creditors.' On the trial of the cause the state offered in evidence the stated account, and the plaintiff in error offered the appeal and specification of objections and an affidavit of its treasurer. The court of common pleas decided in favor of the company but its decision was reversed on writ of error by the supreme court of Pennsylvania,2 and judgment was rendered in favor of the common wealth for $666, being the amount of tax on bonds shown to have been owned by residents of Pennsylvania. It cannot be denied that the plaintiff in error, in its appeal and specification of objections to the tax, did raise a question under the constitution of the United States. That question remained in the record as the foundation of the proceedings in the court, and, whether adverted to or not, was necessarily involved in the final decision of the case. We think it clear, therefore, that the writ of error cannot be dismissed. Our only doubt is whether, under our rules, there was sufficient color for the motion to dim iss, to justify us in considering the motion to affirm. As, however, the supreme court of Pennsylvania, in its opinion, does not seem to have expressly passed upon the federal question, although it was clearly in the record, we may consider that there was color for making the motion to dismiss.

On the merits we have no serious doubt.

1. As to the Assessment of the Tax of Three Mills upon the Nominal or Face Value of the Bonds, instead of Assessing it upon the Actual Value. This might have been subject to question under the state laws, but the state courts have upheld the assessment as valid We are to accept it, therefore, as part of the state system of taxation authorized by its constitution and laws. Then, how does it violate any provision of the constitution of the United States? It is contended that it violates the first section of the fourteenth amendment, which forbids a state to withhold from any person the equal protection of the laws. We do not perceive that the assessment in question transgresses this provision. There is no unjust discrimination against any persons or corporations. The presumption is...

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