City and County of Denver v. Hobbs' Estate

• Decision Date: 07 December 1914
• Docket Number: 7741.
• Citation: 58 Colo. 220,144 P. 874
• Parties: CITY AND COUNTY OF DENVER v. HOBBS' ESTATE et al.
• Court: Colorado Supreme Court

144 P. 874

58 Colo. 220

CITY AND COUNTY OF DENVER v. HOBBS' ESTATE et al.

No. 7741.

Supreme Court of Colorado, En Banc.

December 7, 1914

Error to County Court, City and County of Denver; John R. Dixon Judge.

Action by the City and County of Denver against the estate of Charles M. Hobbs, deceased, and the International Trust Company, administrator. There was a judgment for defendant Trust Company, and plaintiff brings error. Affirmed.

Benjamin Griffith, Atty. Gen., Theodore M. Stuart, Jr., Asst. Atty Gen., and H. A. Lindsley, Thomas R. Woodrow, I. N. Stevens George Q. Richmond, and Charles A. Prentice, all of Denver for plaintiff in error.

Edward C. Stimson, of Denver, and Henry C. Rogers, of Aspen, amici curiae.

Goudy &amp Twitchell and J. H. Burkhardt, all of Denver, for defendant in error.

Macbeth & May, Julius C. Gunter, Malcolm Lindsey, Hughes & Dorsey, John Q. Dier, John A. Ewing, and Frazer Arnold, all of Denver, amici curiae.

HILL J.

This is an action for taxes. The property is stocks in corporations of sister states, other than banking institutions, which, at the time of his death, was owned by Charles M. Hobbs, a resident of this state. It was inventoried here as a part of his estate. It is claimed on the part of the taxing officers that these stocks are subject to taxation separate and apart from the assets of the corporation. This position is challenged on the part of the estate. No question of inheritance tax is involved. The court held that pursuant to the provisions of section 5687, Revised Statutes 1908, the stocks were not thus taxable. In addition to the oral argument, elaborate briefs have been filed covering the entire field of taxation, including numerous papers of recognized students of ability upon the subject, numerous authorities, etc., a great deal of which, while instructive, is of but slight value in the disposition of this contention, for the reason the question is not what the Legislature might do, or should have done, in this respect, but what it has done by the enactment of section 5687, supra.

It is urged that the latter part of this section, which reads:

'Provided, however, that corporate stock shall be deemed to represent the corporate property, and except in case of banking corporations, shall not be taxed. The taxpayer need not return such stock in his schedule'

--applies only to domestic corporations by reason of the constitutional provision which requires equal taxation of property, and forbids exemptions other than as therein specified. We cannot agree that the Legislature thus intended. When tested by the language used it would be violative of elementary rules of construction. It would be to hold that they meant to say that which they did not say, and that they did not intend to say that which, in the clearest and plainest language possible, they have said. In such case it is not for the courts to give to the language any different meaning from that plainly expressed. Hause v. Rose, 6 Colo. 24; People ex rel. v. May, 9 Colo. 80, 10 P. 641; Uzzell v. Anderson, 38 Colo. 32, 89 P. 785, 1056; Lake County v. Rollins, 130 U.S. 662, 9 S.Ct. 651, 32 L.Ed. 1060; City of Denver v. Domedian, 15 Colo.App. 36, 60 P. 1107; Hazelton v. Porter, 17 Colo.App. 1, 67 P. 170.

We agree with counsel that the revenue act, of which section 5687, supra, is a part, should be considered as a whole. When thus done, it furnishes other evidence that the Legislature intended this proviso to mean what it says, and that it was not intended thereby, or otherwise, that the capital stock of corporations, either domestic or foreign, except banking institutions, should be taxed other than as the tax imposed upon the property of the corporation makes it a tax upon the stock. Sections 5575-5581, R. S., make specific provisions for the listing of lands, merchandise, manufactures, notes, bonds, and book accounts, besides shares of stock in banking corporations, both state and national, but do not make any provisions for the listing of other corporate stock. Section 5584 provides for the deduction of debts from notes and credits in fixing the value upon the latter, but expressly provides that no such shall be allowed on account of any indebtedness payable upon, or for the capital stock of any corporation, or for the purchase of bonds, treasury notes, or other securities of the United States not taxable, or other exempt property. The purpose of this is apparent. As corporate stock was not to be taxed separate and apart from the corporate property, it would be unfair to permit a deduction of debts for things which are not taxable by themselves; but this is not to say that the value of corporate stock is not competent to be considered by the assessor, for the purpose of ascertaining the value of the property of the corporation. To the contrary, section 5591 makes the stock and bonds competent evidence of the value of the entire plant of a corporation, either foreign or domestic, while section 5592 provides that:

'The entire business, plant or enterprise, of such corporation shall be valued as a unit, and every element, subject or consideration wherein the use is in inseparable combination with a whole, of which it forms a part, and which gives to the corporation property an added value for the purposes of income or sale, shall be considered in fixing the value for taxable purposes.'

These sections are a guide to the assessor in arriving at the value of the property owned by any corporation, foreign or domestic, but contain nothing which indicates that the stock itself is to be taxed, except as covered by the property of the corporation. Section 5659 requires the assessor to make out an abstract of the assessment in his county, stating in detail certain things, among which he shall set forth the total assessed valuation of all shares in banking corporations; but nowhere is it required that the abstract shall show the value of other corporate stock either foreign or domestic. This is in harmony with the proviso to section 5687, and is further evidence that there was to be no distinction between stock in foreign and domestic corporations.

It is urged that shares of stock in a foreign corporation are the personal property of the owner, separate and distinct from the capital of the corporation, for which reason they form separate and distinct subjects for taxation, and should be thus taxed at the residence of the owner. Assuming they are personal property, they are inconsequential property. They are merely takens or evidence of ownership of an interest in corporate property or the corporation, or something of the kind unnecessary to determine. If destroyed, the holder loses nothing; he is still the owner of what they purported to represent. It is of that class of property that its situs for the purpose of taxation is a matter of legislative control, as is also the method to be provided for its assessment. In Tappan v. Merchants' National Bank, 19 Wall. 490, 22 L.Ed. 189, the Supreme Court of the United States held that shares of stock in national banks are personal property, and though they are a species of personal property, which in one sense is intangible and incorporeal, the law which created them could separate them from the person of their owner, for the purposes of taxation, and give them a situs of their own. While this opinion pertains to stock in a national bank and sustains the validity of an Illinois law pertaining thereto, it recognizes that the situs of corporate stock for the purposes of taxation is a proper subject of legislation. In 19 Wall. at page 499, 22 L.Ed. 189, the court says: 'Personal property, in the absence of any law to the contrary, follows the person of the owner, and has its situs at his domicile. But for the purposes of taxation it may be separated from him, and he may be taxed on its account at the place where it is actually located. These are familiar principles, and have been often acted upon in this court and in the courts of Illinois. * * * Shares of stock in national banks are personal property. They are made so in express terms by the act of Congress under which such banks are organized. They are a species of personal property which is, in one sense, intangible and incorporeal; but the law which creates them may separate them from the person of their owner for the purposes of taxation, and give them a situs of their own. * * * It is conceded that it was within the power of the state to tax the shares of nonresident shareholders at the place where the bank was located; but it is claimed that under the Constitution of the state resident shareholders could only be taxed at the places of their residence. * * * But it is said to be a violation of the constitutional rule of uniformity to compel the owner of a bank share to submit to taxation for this part of his property at a place other than his residence, because other residents are taxed for their personal property where they reside. It is a sufficient answer to this proposition to say that all persons owning the same kind of property are taxed as he is taxed. * * * We have not felt called upon to consider whether the General Assembly could, under the provisions of the act of Congress, provide for the taxation of shareholders at any other place within the state than that in which the bank is located. It is sufficient for the purposes of this case that it might tax them there.'

In Wright et al. v. Southwestern Railroad Co., 64 Ga. 783, it was held that the situs of stock in a railroad company whose road lies outside of the state of Georgia is in the state where the road lies, and that, although held by a resident of Georgia, it was not taxable there. Later, in Georgia Railroad & Banking Co. v. Wright et al., 124 Ga. 596, 53...