, 1889-03-28

use these very words, but in legal con-
temptation It does use them. The statute
defines the term credits and requires
all credits to be listed, and section l9
says that any person may deduct from
the gross amount of his credits the
amount of all bona fide debts that he
owes. OF course there can be no question
that a mortgage is a debt. | was some,
what surprised when | was informed that
it had not been the custom to deduct
these mortgages. Without having looked
at the law at all, and going simply on
general principles. had l had property
under mortgage, in making up my list /
would have deducted from the value OF
the property the value of the mortgage.
Except where there are express provisions
governing the subject the question as to
who would pay the tax upon a mortgage
is a matter of indifference to the taxing
power, and whether the mortgagor or
MORTGAGE shall pay the tax is a matter
generally settled between the mortgagor
and mortgage themselves. There is no
provision in our statute that says abso.
lutely and unqualifedly that a mortgage
shall be taxed to the mortgagor. 1t says
that it shall be so taxed unless it is taxed
to the mortgage. This is as strong as
we can make the language of section 377S,
R. S. 1t can be made no stronger. 1t can
mean no more.
So the only question that remains is as
to how sections 5 and 10 of the act of 1869
are to be construed.
This calls into requisition a familiar
principle of the construction of a statute.
The rule is this: The different parts of
a statute are to be so construed that if
possible the entire statute will stand"
We have here a good opportunity of APP
plying the rule. Sections 5 and 10 do not
contradict each other. Closely viewed
there is nothing in the one at all incon-
sistent with the provisions of the other.
If, however, they were opposed to each
other, so that there could be no reconcil-
ing the conflict between them. section 10
would stand and section 5 would have to
fall, because section 10 is later than sec
ton 5. As there is no conflict between
them it is a very easy matter to so con-
strue the entire law as to make them both
stand, not inconsistent with each other,
and as both having but one obiectin view,
viz: That of seeing to it that a mortgage
is taxed, but as to whom it is taxed makes
no difference, provided it be taxed either
to the mortgagor or to the mortgage.
To summarize, | would say that our
statute governing the subject of taxation
is a very poorly drawn statute, that, as
this is so, in giving it effect, we are
obliged to recur to general principles and
well recognized rules of construction; that
these general principles require that the
same piece of property be taxed but
once; that the rule of construction re-
quires that mortgages be taxed either to
one or the other of two persons, it mat
ters not which; that our statute requires
mortgages to be taxed; and that a mort
gage is to be taxed either to the mort
gagor or to the MORTGAGE.
There is one thing about this statute
that strikes a person at once, and that is
that it requires a mortgage to be taxed,
but it does not require it to be taxed to a
particular person. 1t does, however, re-
Quire it to be taxed to either a m~ortgagor
or a mortgage.
Therefore, it would seem to me that, as
it is optional with the assessor, in making
his assessment he would tax the mort
gage to whichever he saw fit If the
mortgage had already listed the mort
gage, of course he would not assess it to
the mortgagor, while, il the mortgage
had not listed it, he would assess it to the
m%ortgagor. It. occurs to me, that it
would be a good rule to adopt to assess a
mortgage to the mortgage in all cases
except where the mortgage is a non-resi
dent, in which case TO assess it to the
mortgagor. This. however, is merely a
suggestion of my own, and is given sim
ply with a view to establishing a uniform
system which, if adhered to while the
statute is in its present condition, would
be the means OF avoiding any difficulty
whatever upon the subject. Very re-
specially, your obedient servant,
w. r. SToLL.