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payment of a stamp duty imposed by a State, is 1824. supposed to exempt it from the payment of any am
any Osborn tax assessed by State authority. It is dcemed an incident attached to the charter, because that charter is conferred by the supreme authority. It is said, that if any other than the supreme authority that confers the faculty, is permitted to tax the trade or business to be carried on under it, the faculty itself may be rendered useless, and the object of granting it entirely defeated. The power to confer the faculty, and the power to tax the business, if vested in different hands, are thus held to be incompatible, and from this incompatibility the exemption is deemed a necessary incident to the charter, because, without it, it cannot exist. For we must here repeat, that this Court have said, that a corporation “possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its ocry existence.""
This position involves several inquiries, which may be embraced in an examination of the reasons assigned for considering this exemption as an incident attached to the charter, and in an jinvestigation of the powers of Congress to confer this exemption, in express terms, if it cannot be sustained as incidental to the very existence of the
The fact, that a private corporation, created by the sovereign or supreme power, is not, therefore, clothed with any portion of the political character
1824. or political power of its creator, is asserted by the la concurring opinions of the Judges of this Court, Osborn
and is established by its judgment in the case of U.S. Bank.
Dartmouth College o, Woodward. That an exemption from taxation for public purposes, by an inferior legislative power, is not incident to a cor. poration created by the supreme power, is a just inference from the doctrines laid down in the case just cited, and from the whole history of private corporations, down to the decision of this Court in M\Culloch o. Maryland.
The power of assessing taxes is always a legislative power; but in our government, and in that of England, from which many of our institutions, and most of our principles of jurisprudence are derived, this power is exercised by other authorities than the National and State Legislatures. Counties, cities, towns, boroughs, and townships, bave bodies of magistracy authorized to assess taxes for various specific purposes. We have the high authority of Lord Coke himself, that the Justices of a city, shire, or riding, in England, might assess a tax upon the property of a corporation for the repair of bridges. And in The King v. Gardner, it was decided by the Court of King's Bench, that a corporation was subject to be assessed" for poor rates, even as a corporation. In these cases, it was not prétended that exemption from taxation was an incident to the corporation.
If a State Legislature incorporate a company to construct a turnpike road, such charter would be predicated upon the advantage the community would derive from the roau; yet no man would suppose that the horses, cattle, carriages, and other implements employed and used by the company, would be exempt from county levies, poor rates, and other burthens to which the other property of the individuals was subject. And if a general tax upon business or income was assessed, it would not be pretended that the amount received for tolls would be exempt from this tax, upon the ground that a right to have the corporate property and corporate business exempt from taxation, was an incident of the charter. This argument is applicable to every species of individual business conducted by private corporations. If exemption from any particular tax be claimed, it is founded upon a privilege specifically granted in the charter, it is not claimed as an incident to the grant.
It is not uncommon, that almost every species of business carried on within the boundaries of a city, is subject to be taxed by the city magistracy, for city purposes. Should this general authority to tax, extend to bankers, money-lenders, brokers, and others trading in money, notes, stocks, bills of exchange, &c., would the mere fact, that the sovereign authority granted to the individual or individuals carrying on any one of these employments, a corporate character, operate to exempt such individual or individuals from the payment of a city tax, to which he was liable before the corporate character was bestowed upon him ?
1824. Private corporations, emanating from State au
thority, and ultimately connected with the private Osborn
and public welfare, are numerous in all our comU. S. Bank.
mercial cities. Such are fire and marme insurance companies. Are these regarded as exempt from taxes assessed by the city magistrates? Have they ever claimed such exemption ? Has it ever been conceded to them? In all the cases put, it is evident, that the body of inferior magistracy, authorized to levy a tax, if they be not limited as to the amount, which is frequently not the case, may assess upon the corporation an amount which their business could not pay, and thus defeat the object for which the charter was obtained. That such exemption, as an incident of their charter, has never been claimed by such corporations, is strong proof that it was not supposed to exist.
It may be said, that the inferior magistracy and the corporations, in the cases supposed, both derive their authority from the same source, and that it is competent for the authority that created both, so to regulate and control their operations, as to prevent one from being destroyed by the other. This may be granted, without affecting the argument. If the exemption be incident to the corporation, regulations are unnecessary. The power of the national Legislature to confer this exemption, upon a corporation created by it, in express terins, is one thing. That it exists as an incident to the chartër, without any express provision, is a very different proposition.
It is distinctly admitted, in the case of M°Cul.. loch o. Maryland, that the real property of the
Bank may be taxed, and that the stock held by re- 1824. sidents of the State may be taxed. But it is as
Osborn serted, that the operations of the Bank are exempt, because they are the means of the national government; and it is only by the total exemption of the operations of the Bank from the taxing power of the States, that our institutions can be relieved from the absurdity of a power, in one government, to pull down what another may build up, and a right in one government to destroy what there is a right in another to preserve.
But if the real property of the Bank and its stock may be taxed, it is as completely within the power of the States to destroy it by taxation, as it is by taxing its operations. The States may tax the stock owned by its citizens, so high as to compel them to retain it at a loss. Every State in the Union, by adopting this course, may paralize the operations of the Bank, as effectually as in any other mode. If the States act in concert, there is an end of the Bank; and that which the national government have built up, is prostrated by the States. The concession, then, that the exemption is qualified, admits the very mischief which it is set up to prevent. Whatever misapprehension may have prevailed with respect to the operations of the Bank, it certainly never can be asserted, that the individual stock of the members, or the real estate of the company, are the means of the government, and, as such, exempt from taxation. And while these are subject to taxation by the States, it would seem difficult to sustain the position upon