The opinion of the Court was delivered by
Green, J.,
as follows:
The fourth section of the “Act to Provide Revenue by Taxation,” approved June 7th, 1879, provides as follows: “ That every company or association whatever, now or hereafter incorporated by or under any law of this Commonwealth, or now or hereafter incorporated by any other State or Territory of the United States or foreign government, and doing business in this Commonwealth, or having capital employed in this Commonwealth in the name of any other company, association or associations, person or persons, or in any other manner, except, foreign insurance companies, banks, and savings institutions, shall be subject to and pay into the treasury of this Commonwealth, annually, a tax to be computed as follows,” etc., etc. The facts of this case are brought before us by a case stated, in which it is agreed that the appellant “ is a building association incorporated in 1878, under the act of 29th April, 1874, with a nominal capital of $1,000,000, divided into shares of $200 each.” It is also agreed that “ up to first Monday of November, 1879, $50,113.45 (of capital) had been paid in,” and “ this money is loaned out to members on mortgage security.”
By the terms of the case stated, it appears, therefore, that the appellant is an association incorporated by a law of this Commonwealth, having a paid-up capital of $50,113.45 on the first Monday of November, 1879.
Apparently, the language of the revenue act of June 7th, 1879, subjects the appellant to the payment of a tax upon its capital stock. It is contended, however, that it is not liable to such tax upon two grounds: 1st, because building associations are exempted from the tax claimed by virtue of the act of April 10th, 1879, relating to mutual saving funds, building and loan associations; and 2d, because the act of June 7th, 1879, does not, when properly construe], impose a tax upon building associations. As it is undoubted that the act of April 10th, 1879, does exempt from taxation all building associations which, prior to and at that time, were subject to taxation by existing laws, the contentions of the parties to this litigation are presented by the case stated in the two following questions:
First. Are the provisions of the act of April 10th, 1879, exempting the appellants from taxation, repealed by the general revenue act of June 7th, 1879?
Second. If repealed, does the act of June 7th, 1879, impose a tax upon the capital stock of building associations ?
The Court below having decided both these questions against the appellant, and sustained the settlement made by the auditor-general and State treasurer, the association has brought the case here for review by writ of error.
As to the first question. The language of the eighth section of the act of April 10th, 1879, is as follows: “The bonus or tax due to the Commonwealth upon the capital stock of corporations, as provided for by act of first of May, one thousand eight hundred and sixty-eight, or by any other act, shall not apply to or be due from mutual savings fund or building and loan associations.” The effect of this provision undoubtedly was to exempt mutual savings fund and building and loan associations from the payment of the bonus or tax imposed upon them by the act of May 1st, 1868, or by any other act in force on April 10th, 1879, but that was its whole effect. Neither this section nor any other of the act of April 10th, 1879, assumed to surrender the right of the Commonwealth to impose any taxes she might choose to impose in the future. Not the slightest attempt is made to prohibit subsequent legislation in hostility with that of the act in question. Hence, it cannot be doubted that on any day after the 10th day of April, 1879, it was within the authority of the Commonwealth, acting through the lawmaking power, to reimpose any taxes which were removed by the legislation of that date. While it may be argued with some force that it would be inconsistent for the same legislature to remove a tax by one act, and re-establish it by another of subsequent date, yet that is but an argument of inconsistency at the best. It would be very proper to be addressed to the legislative body as a reason for not passing the subsequent act, but it is absolutely of no force when addressed to a court which is bound to construe and enforce plain legislative words. Were the subject an open one, it would be enough to suggest that in the interval between the dates of the two acts, there may have occurred such a change in the financial affairs of the Commonwealth, or, in the opinion of the members of the legislative body respecting those affairs, as to induce them to reimpose taxes which they had by the earlier act removed. In view of these considerations it is evident that if the act of June 7th, 1879, imposes the tax in question, it is scarcely essential to the discussion to determine whether it is a repeal of the act of April 10th, preceding.
But if it were material the question is not difficult of solution. The eighteenth section of the act of June 7 th, provides : “ That this shall go into effect immediately, and that all laws or parts of laws inconsisten therewith, or which are hereby substantially re-enacted, be, and the same are hereby repealed.” The eighth section of the act of April 10th is certainly and necessarily inconsistent with the fourth section of the act of June 7th, if the latter imposes a tax which the former removes, and hence the question is not one of implied but express repeal. In the case of the Commonwealth v. Fayette Co. R.R. Co., 5 P. F. S., on page 455, we said: “ The act of 12th April, 1859, expressly repeals any existing law inconsistent with the provision as to taxation, and as the defendants are conceded to be within the words of the act, the limitation of taxation in their fifth section is clearly altered or repealed.”
In the case of the Union Improvement Co. v. The Commonwealth, 19 P. F. S., 140, the company was, by the express provision of a supplement to its charter, exempted from taxation on its capital stock and dividends. Yet we held that it was liable to such tax under the general language of the act of May 1st, 1868, imposing tax upon all corporations without any words either of special or general repeal. The decision was put solely upon the ground that the act of 1868 subjected to taxation the capital stock of all corporations, and that, therefore, it must be intended to repeal even previous acts which gave special exemption. On page 143 it was said by Williams, J.: “It is true that this company was exempted from taxation by a special act, but this is wholly immaterial if it was the intention of the legislature to repeal the exemption by the act of 1868. If no such repeal was intended, why did the legislature declare that the stock of all companies whatever, except banks, savings institutions, and foreign insurance companies should be subject to the tax imposed by the act ? The exemption of these three classes of corporations from the operation of the act, conclusively shows that the legislature intended to include within its provisions all other corporations whatever, whether they had been previously exempted from taxation or not. If such was not their intention, why were they not included wdthin the saving provisions of the act? ” This language goes much farther than any requirement of the present case demands. In the case just cited the exemption was by a special act, which constituted part of the charter of the company, and of course it was limited to that particular corporation. In the case at bar, the plaintiff in error is one of a class, and claims the benefit of a general act exempting all building associations. The act of 1st May, 1868, contained no general repealing clause, but did contain a section (the sixteenth) which repealed a number of acts and parts of acts by precise description, but none of which embraced the exempting act of 11th April, 1862, which applied to the Union Improvement Company. Notwithstanding all this it was determined by this Court that the mere general language of the act of 1868, making the capital stock of all corporations liable to taxation, operated as a repeal of the special exemption in question. In the case of Erie Railway Co. v. Commonwealth, 16 P. F. S., on page 87, the present chief justice said: “ There is no principle better established, and it requires no long array of cases to prove it, than that no surrender of the general power of taxation by any legislative act can be implied.”
In the present case there is no language in any part of the act of April 10th, 1879,as we have heretofore shown, that purports to surrender in the least degree the general power of taxation possessed by the Commonwealth. Under the case last referred to, it is held that such surrender cannot be implied. We are therefore clearly of opinion that the act of June 7th, 1879, was a fresh and independent exercise of the taxing power, unrestrained by any previous surrender or limitation, so far as building associations are concerned, and also that it operated as an express repeal of the act of 10th April, 1879, exempting such associations from taxation.
The remaining question submitted by the case stated is: “Does the act of June 7th, 1879, impose a tax upon the capital stock of building associations?” The express language of the act includes “ every company or association whatever ”....“ except foreign insurance companies, banks, and savings institutions.”
A building association is neither a foreign insurance com pany, nor a bank, and it cannot, without a manifest abuse of terms, be denominated a savings institution. Technically, building associations and savings institutions have not a feature in common. In the practical details of their operation they are totally dissimilar. The latter were well known and in general use long before the former were ever heard of or had any authorized existence.
If there were the slightest doubt as to whether the legislature regarded savings institutions and building associations as the same, it is instantly dispelled by observing the manner in which they are treated in various acts. The act of 1st May, 1868,imposed taxation upon “ all companies whatever,” “ except banks, and savings institutions, and foreign insurance companies,” but yet provided in the same section, “that building associations, plank road, or turnpike companies, shall not be liable for any tax to the Commonwealth, when such companies make or declare no dividends.” If “building associations ” were already exempt from the operation of the fourth section because they were “ savings institutions,” the proviso clause of that section, which exempts them when they declare no dividends, would be an absurdity.
In the fifth section of the tax act of 24th April, 1874, occurs the following clause: “ And excepting also banks, and savings institutions, building associations, and foreign insurance companies.” If the two classes were the same, of course they would not receive separate designations. Precisely the same independent designation of these two classes of corporations occurs in the excepting clause of section three of the genera] tax law of 20th March, 1877. When the act of 7th June, 1879, was passed, all companies or associations whatever were subjected to the tax “ except foreign insurance companies, banks, and savings institutions,” and the conclusion is irresistible that inasmuch as in the previous acts upon the same subject, building associations were included in the •excepting clauses by express mention, they were omitted from the excepting clause of this act because it was so intended. It is unnecessary to pursue the discussion. We are of opinion that the learned Court below were correct in their conclusions upon both questions submitted, and, therefore,
The judgment is affirmed.