#### THE BANK OF CAPE FEAR *vs.*GURDON DEMING.

Under the charter of the Bank of Cape Fear, the Bank is exempted from all Taxes, Town as well as County and State Taxes.

The case of the *Bank*e/ *Cape Fear*v. *Edwards,*5 Ired. 516, cited and approved.

Appeal from the Superior Court of Cumberland County, at the Fall Term, 1846, his Honor Judge Settle presiding.

The action is brought to recover from the defendant a sum of money, under the following circumstances. The Bank of Cape Fear is a banking corporation, having a branch in the town of Fayetteville, where it owns real estate. The defendant is the officer, duly appointed and authorised to collect the town taxes for the year 1845. He demanded those duly assessed upon the real property of the plaintiffs, in the town, which were paid, under a reservation of their rights. The taxes so collected are, what are called town taxes, and for the use of the town. There being a verdict and judgment for the plaintiff, the defendant appealed.

*Strange,*for the plaintiff.

*Warren Winslow,*for the defendant, submitted the following argument.

This case is, in effect, a contest between the Commissioners of Fayetteville and the President, Directors, and Company, of the Bank of Cape Fear, as to the rights and exemptions of the two corporations respectively. The Act of 1791, ch. 35, “ An Act to amend the several Acts of Assembly now in foree for the regulation of the town of Fayetteville,” gives power to the Commmissioners to levy a tax annually, on every hundred pounds value of *taxable property*within the town ; and the 8th section of the Act of 1787, ch. 29, declares houses, lots, &c. within the town, to be *taxable property.*

*56The Act of 1333, 2 Rev. Stat. 50, charters the Bank of Cape Fear, imposes a tax of *twenty-jive cents*on each share of stock owned by individuals, &e. and declares “ that the said Bank shall not be liable to any further tax.”

The construction of this clause is no longer an open question. It comprehends State and County taxes, which are declared *tó*be *public taxes,*and answer to *parliamentary taxes*in the English books. *Bank of Gape Fear*v. *E (hoards,*5 Iredell, £16. Plaintiff contends, under this clause, that the property of the corporation within the Town of Fayetteville is exempt from the burthens imposed upon other property thus situated.

It is submitted on the part of the defendant, that as the charter of the Commissioners was in force some half century before the passage of the Act of 1833, that the right to levy taxes upon the real property in Fayetteville, was a *vested right,*and the grant to the Commissioners is a contract,-and not now to be disturbed, and therefore the charter of the Bank, if it exempts their lands from taxation by the Commissioners, which is denied, is, so far, void : that this case will be governed by the same reasoning which decided the cases of the *Trustees*v. *Foy,*1 Mar. 58, and *Dartmouth College*v. *Woodward,*4 Whea-ton, 518.

But, if this be not so, and a sound distinction exists between a Municipal Corporation, and one of private foundations : that the law chartering the Bank being a private Act, is to be construed like a deed, and the Commissioners not being named therein, are not bound thereby ; or at all events only by intendment and implication, and not by express words. It is not denied that the Leg- ■ islature could recall the municipal powers granted to the inhabitants of Fayetteville ; but that is not the question here. The case is, that having granted the power to levy taxes upon *all*the property of *all*the inhabitants, can it now, without their consent, arbitrarily exempt particular persons, and thus add to the burthens of the rest. For if *57this claim of the plaintiff be well founded, then are the inhabitants of Fayetteville taxed unequally, and without their consent.

The Bank is a private corporation; it purchased property within the corporation of Fayetteville; the purchase of property there was voluntary and not compulsory. It subjected itself to the burthens attaching to such a location. The Legislature said, “The State, in consideration of the tax upon your stock, will not be the instrument of levying any further tax.” The Bank became the instrument of its own taxation.

But the words, “ any further tax,” are not comprehensive enough, to include the lax, in question, ■ *Taxes*mean *parliamentary taxes,*if the subject matter will suffer it. *Brewster*v. *Kitchen,*1 Ld. Raymond *317,*and *Lady Anna*v. *Crisps,*Salk. 221. *Taxes*are burdens, charges or impositions put upon persons or property for *public*uses. *Cohe*v. *Just.*332, *Carthew*438. A law of New York declares “ that no real estate belonging to any church or place of public worship, shall be *taxed by any law of this State.”*Under an assessment for widening Hall street, certain churches were assessed their proportionate amount and held good. *Matter of the Mayor of New York,*11 John. *77.*If it be said, this case is an authority for the plaintiff *arguendo,*it is replied, that the exemption of the churches was by express enactment, “ they shall not be *taxed by any law of this State”*

The corporation of Fayetteville makes expenditures to protect the buildings of all the inhabitants. It maintains-a *police*for the security as well of the property of the Bank, as the *persons*of its agents. Why should not the' property of the Bank contribute to these expenses *% Qui sentit conmodum debit sentire onus.*

The tax was a lien on the real estate, not to be removed, but by express enactment.

In *McCulloch*v. *State of*Maryland, 4 Wheaton 316, it was said,, that though the Bank of the United States was* *58not subject to taxation by the State governments, yet it was declared that its real estate was subject to the like burthens that other real estate was subjected to.

The *Bank of Cape Fear*v. *Edwards,*is not an authority for the plaintiff.' The Court there is cautious in its use of words, in deciding that cause. It says, “ the Act exempts the property of the Bank from the payment of all *public dues*in the character of taxes of every kind and description, as well County and State.”

These *taxes*are not *public dues.*

Nash, J.

We consider this case, as entirely within the decision of the Court, in the *Bank of Cape Fear*v. *Edwards,*5th Ire. 516. It was there deckled, that, under the charter granted to the plaintiffs; they were not bound to pay the fax imposed for County uses, that they were public dues. It is thought by the defendant and so argued before us, that taxes, imposed for the use of the town of Fayetteville, are not public dues; the reply is, they are as mueh public dues, as County taxes ar®. The latter are imposed, not for the benefit of the State at large, but for that of a particular district called a County ; and so of the former, they are imposed for the special benefit of a particular district called a town. In common parlance we call those taxes, under which the revenue of the State is collected, the public taxes, and the rest take their particular designation from the uses to which they are devoted ; as, the poor tax, taxes for County purposes, taxes for town purposes. They are, however, all taxes, imposed either by the Legislature immediately, or under power granted by that body. When, therefore, the Legislature in granting the charter of incorporation to the plaintiffs, say, that in consideration of their paying into the public Treasury annually, twenty-five cents upon each share owned by private individuals, “the said Bank shall not be liable to any other tax,” it is sajdng that they shall not pay *any*other tax, but the one imposed by the *59charter. It may be, the Legislature meant only, that the Bank should not be called on by them to pay any other sum, in the way of taxes into the Public Treasury. If so, they have not made themselves so intelligible, as to shew such was their meaning; nor is there any thing in the act itself, or in the subject matter, to point out to us that their meaning was different from what their words import on their face.

On behalf of the defendant, it has been urged before us, that the word “ taxes,” mean parliamentary taxes,- as it is termed, and does not embrace those imposed by the Commissioners of a town, for town purposes. To support this position, our attention has been directed to several authorities. We have examined them with that attention, which is due to every suggestion made at the bar. Our examination has led to a directly contrary opinion : that they not only do not sustain the defendant’s position, but that, under them, it fails him entirely.

Lord Holt, in th'e case of *Brewster*v, *Kidgell,*Carthew 438, says, “the word ‘.‘taxes,” comprehends rates for the church, and poor, and those rates imposed by the commissioners of the sewers, as well as parliamentary taxes.” Lord Coke, 9 Insti. *532,*says that “ talliage (the ancient word used for taxes,) is a general word, and includes all subsidies, taxes, tenths, fifteenths, i mpositions, or other burthens or charges, put or set upon any man and so in the case the *matter of the Mayor,*&c. *of New York,*11 John. R. 77. In the latter case, the question arose under an Act of the Legislature of that State, wherein it was provided, “ that no real estate belonging to any church or place of public worship, &c. shall be taxed by any law of the State.” The commissioners of the city, in widening and extending Nassau street, made a report of the estimate and assessment of the damage and benefit to the parties interested, &c„ among which or whom were certain churches. These churches objected to the report, upon the ground, principally, that *60the word tax used in the act, comprehended every species of contribution or burden, imposed by the authority of the State. The Court decided, “ that the provisions of the Act all refer to general and public taxes, to be assessed and collected for the benefit of the *Town,*County or State at large,” and farther, “ that the word “ taxes” means burdens, charges, or impositions put, or set, upon persons or property, for public uses ; and they refer to the authorities already cited. We think, this is a ease very strongly in point, for the plaintiffs. It is true, the judgment was against the churches, not because the assessment was a tax, for they expressly say it was not, but because the Legislature intended to relieve the churches from these public burdens. “‘But to pay for the *opening of*a street, in a ratio to the benefit or advantage derived from it, is no burden,” and is not a tax.

These authorities satisfy us, that the assessment, made by the Commissioners of Fayetteville upon the real estate of the plaintiffs within the corpoi'ation, was, in the legal acceptation of the word, a tax. The dues so to be collected, are, in the Acts incorporating the town of Fay-etteville, called a tax, and are uniformly so designated in every act passed by the Legislature, granting a municipal incorporation.

We have not been able to- sec the force of the argument drawn from the inequalities óf the burden imposed upon the citizens of the town, by withdrawing- from taxation such a part of the taxable property. Nor can we perceive the want of power in the Legislature to grant the exemption, when the public good requires it. By the revenue Act, *Rev. Stat. ch.*102, *sec. 2,*the real estate belonging to the University and such houses and lots and other real estate, as are set apart and appropriated to divine worship, or for the education of youth, or the support of the poor, and also such real property as is, or shall be exempted by any act creating a society or company, with corporate powers or privileges, shall be exempt from *61paying public taxes. Acts of this kind, are nearly coeval with our government, and have been sustained in our Courts; and yet they withdraw from taxation much valuable property, and thereby increase the burden of those whose property is not exempt,

We perceive no error in the opinion of the Court below.

Per Curiam. Judgment affirmed.