Judge v. Spencer

• Decision Date: 25 May 1897
• Docket Number: 782
• Citation: 48 P. 1097,15 Utah 242
• Court: Utah Supreme Court
• Parties: MARY JUDGE, APPELLANT, v. JOHN D. SPENCER RESPONDENT

48 P. 1097

15 Utah 242

MARY JUDGE, APPELLANT, v. JOHN D. SPENCER RESPONDENT

No. 782

Supreme Court of Utah

May 25, 1897

Appeal from the Third district court, Salt Lake county. Hon. A. N Cherry, Judge.

Action by Mary Judge against John D. Spencer, collector of Salt Lake county, to recover the amount paid, under protest, to the collector on mortgages held by plaintiff, on the ground that the constitution and laws of the state do not authorize the taxing of mortgages. To the complaint a demurrer was interposed on the ground that the complaint did not state a cause of action. The plaintiff elected to stand on her complaint, upon the court sustaining the demurrer, and from a judgment dismissing the cause of action, appeals.

Affirmed.

Frank Pierce, for appellant.

That section 2 and section 12 of Art. XIII of the constitution should be so construed as to leave the legislature the question of the taxation of mortgages, see: Attorney General v. Detroit Co., 2 Mich. 138; People v Burns, 5 Mich. 114; District Township v Dubuque, 7 Iowa 262; Manly v. State, 7 Md. 135; Parkinson v. State, 14 Md. 184; Belleville Ry. v. Gregory, 15 Ill. 20; Ogden v. Strong, 2 Paine C. C. 584; Reygate v. Wardsboro, 30 Vt. 746; Brooks v. Commissioners, 31 Ala. 227; Derr v. Dubois, 16 N. J. 285; Derr v. Schenk, 8 N. J. 29; Bigelow v. Ry., 27 Wis. 478; Gas Co. v. Wheeling, 8 W.Va. 320.

Waldemar Van Cott, Co. Att'y, for respondent.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This action was brought to recover a sum of money paid the defendant, who was tax collector, under protest, for taxes on certain mortgages, the plaintiff claiming that such taxes were unauthorized. It is alleged in the complaint, substantially, that in 1896 the defendant was the collector of taxes for Salt Lake county, Utah; that plaintiff was and is the owner of promissory notes aggregating $ 37,675, secured by mortgages on real estate situated in said county; that the mortgaged real estate is owned by private citizens, and was taxed for its full value to the respective owners for the year 1896, without any deduction being made because of the mortgages resting thereon; that before the first Monday in June, 1896, the assessor wrongfully and unlawfully assessed the mortgages; that although the tax was unauthorized by law and void, yet the defendant threatened to collect the same, and to sell sufficient of the plaintiff's property to make the taxes, and thereupon, to prevent such sale, the plaintiff paid said taxes, amounting to the sum of $ 889.14, under protest. The prayer is that the tax be declared illegal and void, and that the plaintiff have judgment against the defendant collector, for the sum so paid. The defendant demurred to the complaint, on the ground that it did not state a cause of action. The demurrer was sustained, and, the plaintiff electing to stand on her complaint, judgment of dismissal was entered, and from that judgment this appeal has been prosecuted.

The only question presented is whether, under the constitution and statutes of this state, mortgages are taxable. The appellant insists that chapter 48, Sess. Laws 1892, under which mortgages were exempt from taxation, has not been repealed, and that, therefore the tax in question is invalid; while the respondent contends that, as regards exemptions from taxation, the law of 1892 was superseded and annulled by the constitution and the statutes of 1896, and that mortgages are now taxable. The constitution, in section 2, art. 13, provides: "All property in this state, not exempt under the laws of the United States, or under this constitution, shall be taxed in proportion to its value, to be ascertained as provided by law. The word 'property,' as used in this article, is hereby declared to include moneys, credits, bonds, stocks, franchises, and all matters and things (real, personal, and mixed) capable of private ownership; but this shall not be so construed as to authorize the taxation of the stocks of any company or corporation, when the property of such company or corporation represented by such stocks has been taxed." This is an express constitutional provision for the taxation of all property within this state, not exempt under the laws of the United States or this constitution. Excepting such exemptions, there is no limitation as to the subjects of taxation, or the quality or character of matters and things which are to share the burden of government. That mortgages constitute a species of property does not admit of serious controversy, and the appellant does not seem to contend that they are not embraced in the term "property," as used in the constitution, but insists that the law of 1892, by which they are exempt, remains in force. The framers of the constitution, however, evidently intended that no property should be relieved from the burden of taxation, except such as was defined and specified for exemption by that instrument. Such intent appears to be emphasized in section 3 of the same article, which directs that "the legislature shall provide by law a uniform and equal rate of assessment and taxation on all property in the state, according to its value in money, and shall prescribe by general law such regulations as shall secure a just valuation for taxation of all property; so that every person and corporation shall pay a tax in proportion to the value of his, her or its property,"--and then provides for a deduction of debts from credits, and specifies certain classes of property which shall be exempt from taxation, but no reference is made to mortgages. This provision made it incumbent upon the legislature to provide a uniform system by which every species of property within the state, not exempt by the organic law, should equally and ratably bear its due proportion of the public burden, and the legislature had no power to exempt property not exempt under the constitution. The intention manifest from the several provisions of that instrument, respecting revenue and taxation, is not only that previous territorial legislation, as to such exemptions, should be repealed, but also that no power should exist in the state government to grant exemptions other than those mentioned in the constitution.

Whether or not the law of 1892 remained in force, under section 2, art. 24, Const., until repealed by the state legislature, is immaterial, because the legislature, in the language of the constitution, before this action was brought, provided: "All property in this state, not exempt under the laws of the United States, or under the constitution of this state, shall be taxed in proportion to its value." Laws 1896, c. 129, § 1. This provision forms a part of the revenue...