Joseph McKenna

“ Stress is put in the argument at bar upon the distinction between taxes on property and taxes on occupations. The distinction exists and counsel have cited Louisiana decisions in which that distinction has been held to justify license taxes, notwithstanding clauses in charters exempting capital stock from taxation. a review of theoses cases is not necessary. They were all rendered subsequently to 1836, and they depended upon the application of the constitution of 1868 or 1879, or special circumstances not applicable to the charter of the Citizens' Bank. ”

“ Its proper office is to help to solve ambiguities, not to compel an immediate surrender to them,-to be an element in decision, and effective, maybe, when all other tests of meaning have been employed which experience has afforded, and which it is the duty of courts to consider when rights are claimed under a statute. ”

“ A motion is made to dismiss. The ground of it is that, even if the charter of 1833 and the amendment of 1836 exempted the bank from license taxes, the bank, by accepting the act of 1880, which enabled the bank to make compromises with its mortgage creditors, became subject to the constitution of 1879, which, it is contended, authorized or required the legislature to impose a license tax. ”

“ This was the thing adjudged in New Orleans v. Citizens' Bank, 167 U.S. 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905.
The exemption of the charter includes a license tax. This, for the reasons stated, must be regarded as part of the contract between the state and the bank. And in reaching that conclusion the rule requiring a strict construction of statutes exempting property from taxation has not been infringed. We recognize the force and salutary character of the rule, but it must not be misunderstood. It is not a substitute for all other rules. ”

“ In other words, it was held that a license tax was virtually a tax on the capital of the banks, and, we think, that must be held of the tax in the case at bar. Whatever the tax may be called,-one on property or one on occupations,-if its final incidence is on the capital, it is comprehended in the exemption contained in the charter. As we have already pointed out, the language of the charter is universal; and it was said in Citizens' Bank v. ”

“ Southern Bank, 23 La. Ann. 271, upon a license tax imposed by the revenue laws of 1889. The court was urged to overrule New Orleans v. Southern Bank. The court refused to do so and affirmed the doctrine of that case, and held the act 'violative of § 10, article 1, of the Constitution of the United States.' The supreme court of Louisiana, therefore, as early as 1853, construed a provision exempting the capital stock of a bank from taxation except at a particular rate as exempting the bank from a license tax. ”

“ Nor can they necessarily be accused of folly. There are limits to the power of government, and the wisest provisions may be frustrated or turned to detriment by causes which no prescience can foresee. ”