The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-05-26

Collector Spencer.
The opinion, which affirmed the ]uds
mont Of Judge Cherry in the district
court was written by Justice Barton
and concurred in by Chief Justice zane
and Justice Miner
The full text of the opinion, which
afirms the validity Of the mortgage
tax law, is as follows:
Bartch, j.
This action was brought to recover
q sum Of money paid the detenoant'
who was tax collector, under protest,
for taxes on certain mortgages, the
plaintiff claiming that such taxes were
unauthorized
1t is alleged in the complaint, sub
stan4ially. that in 1896 the defendant
was the collector of taxes for salt Lake
county. Utah; that plaintiff was ana IS
the owner Of promissory notes aggre-
eating $S7, $50, secured by mortgages on
real estate situated in said county; that
the mortgaged real estate is owned by
private citizens and was taxed for It's
full value to the respective owners Tor
the year 1896, without any deduction
being made because of the MORTGAGES
resting thereon; that before the nrst
Monday in June. 1896, the assessor
wnongfully and unlawfully assessed the
mortgages; that although the tax was
unauthorized By law and void, vet the
defendant threatened to collect the
same. and to sell sufficient of the plain
+iff's property 70 make the taxes, and
thereupon. 10 prevent such sale, the
1olaintif paid said taxes, amounting 10
the sum OF SSS9.14, under protest. ne
PRAYER is that the tax be dectareu IL
leeza, and void, and that the plalnthL
have Judgment against the defendant
collector for the sum so paid
The defendant demurred to the COM
plaint on the ground that it did not
state a cause of action. The demurrer
was sustained, and, the plaintiff elect
inc. TO stand on her complaint, Juos-
ment of dismissal was entered. anu
from that judgment this appeal mas
been prosecuted. The only question
presented is whether under the con-
stitution and statutes OF TINS STATE
mortgages are taxable.
The appellant insists that chapter 40,
session laws 1892, under which mort
cages were exempt from taxation, mas
not been repealed, and that therefore
the tax in question is invalid; while
the respondent contends that, as re-
CARDS exemptions from taxation, the
law of 1892 was superseded and an
nulled by the constitution, and the
statutes of 1896, and that mortgages
are now taxable.
The constitution. in section 2, article
13, provides: All properly IN the
state, not exempt under the laws OF the
United States, or under TINS constltu-
ton. shall be taxed in proportion to
IT'S value to be ascertaineG as pro-
vided by law The word property, as
used in this article, is hereby declared
to include moneys. credits, ponoS,
stocks, franchises and all matters ana
things (real, personal and mixed ca
nafle of private ownership but this
shall not be so construed as to author
ize the taxation of the stocks OF any
company or corporation, when the
property Of such company or corpora
ton represented by such stocks mas
been taxed"
vision for the taxation of all property
within the state, not exempt under the
laws Of the United States or this con-
stitution Excepting such exemptions,
there is no limitations as to the SUD
jects 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 en-
braced in the term property, as USED
in the constitution. but insists that the
law of 1892 by which they are exempt.
constitution. however, evidently in
tended that no property should be re-
ieved from the burden of taxation,
except such as was defined and sDecl-
fed for exemption by that instrument.
Such intent appears to be emphasized
in section g. Of the same article, which
provide by law a uniform and equal
rate of assessment and taxation on
all property in the state, according 10
its value in money, and shall prescribe
by general law such regulations as
shall secure just valuation for taxa
ton of all property; so that every per-
son and corporation shall pay tax in
proportion to the value of his, her, or
its property" and then provides for
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 il incumbent
upon the legislature to provide a uni
form system by which every species
OF property, within the state. not ex-
empt by the organic law, should equal
IL and ratably bear its due proportion
of the public burden, and the legisla-
ture has no power to exempt property
not exempt under the constitution.
The intention manifest from the sew
eral provisions Of that instrument, re-
speeding revenue and taxation, is not
only that previous territorial leSisla-
ton as to such exemptions, should be
repealed, but also chat no power exists
in the state government to grant eG-
emptions other than those mentioned
in the constitution.
Whether or not the law of 1892, re-
manned in force, under section 2, article
"a constitution until repealed by the
state legislature. is inmaterial, be-
cause the legislature, in the language
OF the constitution, before this section
was brought, provided: "All properly
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" Sec
ton /. c. 129, Sess. Laws 1896. This
provision forms a part of the revenue
act of 1896. and in section thereof,
certain classes of property, other than
notes and mortgages, are EXEMPT, in
accordance with the provisions OF the
constitution.
in section l. subd. I, of that act, the
term property" is defined, same as in
the constitution; and in subd. 4, the
term personal property" is including
everything which is subject of owner
ship not included within the meaning
OF the term real estate" and i'm
provements."
It is clear that notes and mortgages
constitute property within the mean
ing Of the revenue act, and, not being
included with the property exempt, the
manifest intention of the act was TO
subject them to the burdens of taxa
tion; and this as,ords with the inten-
ton of the trainers Of the constitution,
as is apparent from the several provi-
sions of this instrument. tt follows
that the law of 1892. exempting mortg
ages from taxation, is in conflict, not