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


counsel for the appellant, that re-
peals by implication are not favored,
still the intention of the law maker
must prevail, and where, as in this
case, the former law is repugnant to
the spirit and intention, apparent from
the late law, the former is repealed to
the extent Of such repugnancy, even
though there are no express words of
repeal in the later law.
Nor does the fact that the real
estate. on which the mortgages rest. is
owned by private citizens, and has
been assessed and taxed for its full
value, render the assessing and tax
ing OF the mortgages liable to the
charge of double taxation, or violate
the principle of equality and uni
forlnity in taxation. A mortgage is a
security for a debt, which debt is a
species of property, intangible, ii is
true, but nevertheless distinct prop
erty, capable of ownership, and, If not
for all purposes, it may for that of
taxation, be regarded as situated at
the domicile of the creditor or owner,
and if his residence is within the
jurisdiction of the state, the situs Of
the debt is also within such jurisdic-
ton. The mortgage is the evidence
of the debt; representing the amount
of money loaned. and If destroyed, the
debt, with the stipulated interest, re-
mains, and payment thereof may be
enforced. Being thus a species Of
property distinct from other property
its owner or holder, when residing
within the state, is assessed and taxed
as the owner of money in use, and
not upon an interest in the land, which
is merely pledged as security for the
return of the money loaned. LAM is
useful and productive, and its value
is estimated, for the purposes of taxa
-
usefulness. So a mortgage represents
debt which has value and produces
an jncoma and its value should be
estimated accordingly, for like pur-
pose. The products of the soil con-
stitute the income of the holder of the
mortgages. The two species of prop
erty are entirely separate, and repre-
sent different values, and on principle,
it would seem, each should contribute
a just share of the burdens of govern
nent, however difficult it may be in
practice to have each owner do so, in
q state where the rate of interest by
contract is not limited. 1t undoubtedly
frequently happens that the owner of
land, mortgaged, is not only compelled
to pay the assessment on the land, but
also, indirectly, at least, by increased
rate of interest on the money borrowed,
TO pay the tax on the mortgage, and in
this way the burden which ought to be
borne by the creditor may be shifted to
the debtor. Nevertheless this does not
render the taxing of the mortgage OBJ
jectionable, as double taxation, nor yet
initiate against the business and le-
gality Of the tax, although it may rem
der questionable the policy of the law
Its policy, however, does not concern
us. Whether such a law promotes the
best welfare of the state, or whether.
as is insisted by counsel for the appel
liant. it is disastrous to business inter
esfs. is not our province to decide. We
are bound by the fundamental law. as
enacted by the representatives of the
people in the constitutional conven-
lion. and IL must be remembered that
taxes, which are assessed and col
lected for the support of the govern
ment, must be levied on such property
as the people, through their represent
atives, may designate. They having
chosen TO designate money as one of
the subjects Of taxation, it cannot sue
cessfully be contended that, when it is
in the actua! possession of the owner
it may be taxed, but when it is loaned
and the debt evidenced by mortgage
from which the owner derives his in
come, it ceases to be a subject of tax
alton, although mortgages are not
found among the exemptions in the Or
ganic law.
Doubtless the language of the con-
stitution respecting the subject of tax
alton. and which is also Incorporated
into the revenue act, is broad enough
to include mortgages, and the court
will not aid or enlarge exemptions by
Interpretation. The presumption is that
all exemptions intended to be granted
were granted in express terms. In such
cases the rule of strict construction ap-
plies, and in order TO relieve any species
of property from its due and just pro-
portion OF the burdens of the govern
ment, the language relied on as Great
ing the exemption should be so clear
as not to admit of reasonable coatro-
versy about its meaning. for all doubts
must be resolved against the exemp-
ton. The power to tax rests upon ne
cessity. and is essential TO the exist
ence os the state.
Cooley on Taxation. PIP. SO, 20 and POS.
Bailey V. Mcguire. q Wall. 215.
Lamar Y. Palmer, Is Fla, 147.
Kirkland V. Hotchkiss, 100 u s. 491
State V. Carson City Saw. Bank, 80
Pac. ReD. 702.
People V Eddy, As Cal. 331.
People V. Board of Supervisors, SO N.
w R. s2e.
There is no complaint that the mort
cages in this case were valued too high,
and being of the opinion that they are
proper subjects Of taxation, the judg-
nent must he affirmed.
Tt is so ordered.
We concur:
ZANE, C. ].