North Ward National Bank of Newark v. City of Newark.

mode in which the tax shall be assessed and collected, and the place where it shall be laid upon resident stockholders, are left to the discretion of the Legislature of the State in which the banks are respectively located. We must look, therefore, to our own Constitution and laws to ascertain whether the assessment in controversy was legally made.

The Legislature of this State, by the 16th section of the general tax law of April 11th, 1866 (Nix. Dig. 954), provided that the stock of National and State banks should be taxed to stockholders in the township or ward wherein the bank is located, and it was made the duty of the bank to retain and pay the amount of the tax out of dividends from time to time declared, and such tax was made a lien on the shares of the stock, and the same were made liable to be sold by virtue of a tax-warrant against the person taxed, as in other cases. By the act of April 1st, 1869 (Acts, 1869, p. 1149), stockholders resident in the State were required to be taxed for the stock of National banks in the townships or wards in which they respectively resided, and the bank was to be assessed for stock owned or held by non-residents of this State. In these particulars only, the act of 1866 was altered by the act of 1869. By force of these two acts, the mode of taxing the stock of National banks was this stockholders, resident in this State, should be taxed therefor in the township or ward where they reside, respectively, and the assessment on the stock of non-resident stockholders should be made in the township or ward where the bank is located, and, in form, against the bank, the tax being a lien on the stock, and payable out of the dividends thereon, at least so far as it was laid for stock owned or held by stockholders residing out of the State. This system of taxation of the stock of National banks, by force of these two acts, became the general law on the subject, in force throughout the State.

In 1872, by a supplement to "An act relating to the assessment and revision of taxation in the city of Newark" (Acts, 1872, p. 1165), the 16th and 17th sections of the act of April 11th, 1866, were "declared to be in full force and effect, so far as relates to the city of Newark." Upon the idea that, in this obscure way, the 16th section of the act of 1866 was revived and re-enacted, without regard to the alterations of it by the act of 1869, as a local and special law in force in the city of Newark, the assessment in question was made. It was made against the bank on its surplus of

North Ward National Bank of Newark v. City of Newark.

$11,000, which was held by the bank, and does not appear to have been invested in government securities, and also upon its entire capital stock of $250,000, which was owned by persons residing in the city of Newark and elsewhere in the State of New Jersey, and by stockholders non-residents of this State.

The objection of the prosecutor, that the tax is assessed against the bank, and not to the individual stockholders, should not, under the circumstances, be allowed to prevail. It is purely a formal objection, and is not specifically taken in the reasons assigned. Undoubtedly, a strict adherence to the words of the act of Congress would require the assessment to be directly against the individual stockholders. To such an assessment, it would be competent for the Legislature to annex a lien on the stock, with a power to sell in satisfaction of the tax of the delinquent stockholders. This, in substance, so far as the interests of the bank are involved, is the effect of this assessment. The tax can only be collected out of the dividends. In National Bank v. Commonwealth, 9 Wall. 353 (ante, p. 34), and Lionberger v. Rouse, id. 468-477 (ante, p. 41), the assessments were in form against the bank, and were sustained by the court. While the 16th section of the act of 1866 was in forcethe tax on all the stockholders being laid at the place where the bank was located, and paid by the bank — it was the universal custom, adopted for the convenience of all parties, to make the assessment in form against the bank, instead of individual stockholders, and to pay it out of the general funds of the bank, instead of charging the several amounts to the accounts of individual stockholders. Since 1872, this custom has been continued in the city of Newark, for the same reasons of convenience. Without any application having been made to the commissioners of taxation to change the form of the assessment, and transfer it from the bank to individual stockholders, it would be unjust to the public to allow the objection to the form of the assessment to be taken, where no reason presenting the precise ground of exception to the tax has been filed.

The other objection presents the material question in the cause. It is, that the act of 1872, as a local and special act on the subject of taxation, became inoperative by the adoption of Paragraph 12 of the Constitution of this State, as amended in 1875. That paragraph is as follows: 'Property shall be assessed for taxes under general laws, and by uniform rules, according to its true value."

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North Ward National Bank of Newark v. City of Newark.

It was contended by the city counsel that it is a fundamental rule of construction, of universal application, that constitutional provisions will have operation only prospectively. If by this proposition be meant merely that a new constitutional amendment will be inoperative to make null transactions past and done under a preexisting law, which were valid when the transactions took place, the position is conceded to the fullest extent. The destruction of vested rights, whether by a statute or constitutional amendment, by implication, will never be presumed. Osborne v. Nicholson, 13 Wall. 654. But the argument does not touch the point of this case. For instance, an assessment of taxes made under an existing law, which was repealed after the assessment, but before its collection, is a thing passed and completed, and is unaffected by such repeal. Town of Belvidere v. Warren R. R. Co., 5 Vroom, 193; S. C. in error, 6 id. 584. So, also, a conviction and sentence, under a statute in force when judgment is pronounced, will not be vacated, or the term of imprisonment terminated by a subsequent repeal of the statute. But in taxation from year to year, each successive act of taxation is a separate and distinct thing, appealing to a law in force when the tax is laid, to support the imposition.

Nor can it be questioned that a constitutional provision will operate, proprio vigore, to repeal existing statutes, if such be the intention of the framers of the instrument. In People v. Supervisors of Westchester, 12 Barb. 446, a constitutional amendment, "that when private property shall be taken for public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law," was held to abrogate a prior statute providing for a different mode of assessment of the damages. In Pierce v. Delamater, 1 Comst. 17, a statute which disqualified a judge of the Court of Appeals from taking part in the decision of a cause or matter which was determined by him when sitting as a judge in any other court, was held to be abrogated by a constitutional provision subsequently adopted, which prescribed the qualifications of the members of the court, and did not disqualify for that reason. In St. Joseph Board of Public Works v. Patten, 62 Mo. 444, it was held that a constitutional provision that taxation for school purposes should not exceed forty cents on the $100, executed itself; that it required no legislation to enforce it, and therefore went

North Ward National Bank of Newark v. City of Newark.

into effect on the adoption of the Constitution. The fifteenth amendment of the Constitution of the United States invested the citizens of the United States with the right of exemption from discrimination in the exercise of the elective franchise, on account of race, color, or previous condition of servitude. It was so held by the Supreme Court of the United States, in United States v. Reeve, 92 U. S. (2 Otto) 215. Congress was, by the same amendment, empowered to enforce that right by appropriate legislation, that the right conferred might be more effectually protected; but practically, the word "white," used in the Constitution of this State in designating the persons entitled to suffrage, was eliminated from that instrument by this amendment, although it was not in fact expunged until the amendment of the State Constitution in 1875. Other instances of the self-executing quality of constitutional amendments, abrogating prior institutions, laws and Constitutions, and becoming proprio vigore, the supreme law, without legislative aid, will be found in the following cases: Permoli v. First Municipality, 3 How. (U. S.) 589; Ochiltree v. The Railroad Company, 21 Wall. 249; In matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9. In Groves v. Slaughter, 15 Pet. 449, the court held that an article in the Constitution of the State of Mississippi, that" The introduction of slaves into this State as merchandise, for sale, shall be prohibited from and after the 1st day of May, 1833," was not operative as a law of prohibition. This decision was reaffirmed in Rowan v. Runnels, 5 How. 134, although, in the meantime, the courts of Mississippi had decided otherwise. The decision in the Supreme Court of the United States was put upon the peculiar language of the enacting part of the article"shall be prohibited" which they construed to be a command addressed to the Legislature to do a certain act, and also on the ground that legislative action was indispensable to carry into effect the object of the prohibition.

The effect of a constitutional amendment on existing laws is a question of intent. The inquiry is whether the particular provision is one that is capable of self-execution, and was so intended by its framers, or whether legislative action was needed to give it effect, or its operation was designed to be on future Legislatures, either to enlarge their powers or restrict them.

Of the constitutional amendments of 1875, the paragraphs which were directed to be inserted in the then existing Constitu

North Ward National Bank of Newark v. City of Newark.

tion, as paragraphs 11 and 12, are illustrations of two of these classes of constitutional provisions.

Paragraph 11 is as follows: "The Legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say, laying out, opening, altering, and working roads or highways; vacating any road, town plot, street, alley, or public grounds; regulating the internal affairs of towns and counties; appointing local offices or commissions to regulate municipal affairs; selecting, drawing, summoning, or empaneling grand or petit jurors; creating, increasing, or decreasing the percentage or allowance of public officers during the term for which said officers were elected or appointed; changing the law of descent; granting to any corporation, association, or individual any exclusive privilege, immunity, or franchise whatever; granting to any corporation, association, or individual the right to lay down railroad tracks; providing for changes of venue in civil or criminal cases; providing for the management and support of free public schools. The Legislature shall pass general laws providing for the cases enumerated in this paragraph, and for all other cases which, in its judgment, may be provided for by general laws. The Legislature shall pass no special act conferring corporate powers, but they shall pass general laws under which corporations may be organized and corporate powers of every nature obtained, subject, nevertheless, to repeal or alteration, at the will of the Legislature."

This paragraph is plainly operative only on future legislation. It prohibits, in the future, the adoption of any local or special legislation on the enumerated subjects, and enjoins the passage of general laws on such subjects. Its prohibition is laid on, and its commands addressed to, subsequent legislatures only. Its effect is upon what the Legislature may do in the future, and not upon what has been done by it in the past.

Then follows paragraph 12: "Property shall be assessed for taxes under general laws, and by uniform rules, according to its true value." The change in the language of this command from that in the preceding paragraph is significant, inasmuch as the two paragraphs follow in immediate succession. The mandate is not, as it is in the preceding paragraph, addressed to the Legislature. It would have been easy and quite natural for the framers of the constitutional amendments to have added the subject of this paragraph to the preceding one, and have enjoined the passage by