50 Wash. 164, 96 P. 1047 STATE EX REL. WOLFE V. PARMENTER (S.

Ct. 1908).

     THE STATE OF WASHINGTON, on the Relation of J.G. Wolfe,
          JOHN PARMENTER, as County Assessor, Appellant

                          No. 7327
50 Wash. 164, 96 P. 1047
                     August 1, 1908, Decided

Appeal from a judgment of the superior court for Lincoln county,
Warren, J., entered March 6, 1908, upon overruling a demurrer to
the petition, granting a writ of mandate to require the listing
           of property for the purpose of taxation.

"relating to revenue and taxation" is sufficiently broad to
include provisions exempting certain property from taxation.
the title of an act is declared to be one amending a specified
former law "relating to revenue and taxation," while the law
referred to relates to mining claims, the reference to the law is
to be taken as a clerical error and surplusage; and the act being
a clear treatment of the subject of revenue and taxation, is
valid without reference to the law amended, as an independent act
amending existing statutes by implication.
accounts, certificates of deposit, judgments, state, county and
municipal bonds and warrants, may all be classed as "credits" in
the listing of property for taxation, but "moneys" cannot be so
property within Const. art. 7, 1 and 2, requiring all property
to be taxed in proportion to its value by uniform laws, "provided
that a deduction of debts from credits may be authorized," and
Laws 1907, p. 69, 1, exempting the same is valid; since the
total actual value of all property in the state may be taxed once
without the taxation of credits and the taxation of credits would
constitute double taxation, and any method which reasonably
comprehends the taxation of all property once and avoids double
taxation is within the requirements of the constitution
(FULLERTON, J., dissenting).
Const. art. 7, 2, that debts may be deducted from credits in
the assessment of property for taxation does not recognize
credits as property within the requirement of the section that
all property be taxed; inasmuch as the main subject of the action
is the requirement of uniform taxation, and credits cannot be
assessed without double taxation (FULLERTON, J., dissenting).
TAXATION -- EXEMPTION OF MONEYS. Laws 1907, p. 69, 1, exempting
"moneys" from taxation, violates the constitutional requirement
that all property be taxed.
STATUTES -- PARTIAL INVALIDITY -- EFFECT. The unconstitutionality
of Laws 1907, p. 69, 1, in so far as it exempts moneys from
taxation does not affect the constitutionality of its other
provisions exempting credits.
-- COSTS. A general demurrer to a petition in mandamus to compel
the listing of moneys and credits for taxation is properly
overruled, since the petition states a cause of action as to
"moneys"; but entry of judgment as demanded is error, and should
be reversed as to the "credits," with costs to the appellant.

C.A. Pettijohn, for appellant.
Martin & Wilson (J.E. Frost, of counsel), for respondent.
James B. Howe and R.G. Sharpe, amici curiae.
J.H. Easterday, Peters & Powell, and Hudson & Holt, amici curiae.

{*170} This action was instituted in the superior court of
Lincoln county, and it is in the nature of an action in mandamus
to require the assessor of that county to list for taxation
purposes, for the year 1908, mortgages, notes, accounts, {*171}
moneys, certificates of deposit, tax certificates, judgments,
bonds, and warrants. In terms the petition asks for a writ of
prohibition to prohibit the assessor from allowing the
above-mentioned items to become exempt from taxation; but in
effect the relief sought is affirmative and in the nature of
mandamus. The assessor demurred to the petition, on the ground
that it does not state facts sufficient to authorize the issuance
of a writ. The demurrer was overruled, and in the absence of
further pleading, judgment was entered commanding the assessor to
list and assess all the items specified above. The assessor has
It is urged in support of the demurrer that it was the duty of
appellant to refuse to list the items mentioned, by reason of the
act of the legislature as found in chapter 48, at page 69 of the
session Laws of 1907. Section 1 of that act is as follows:
"That section 3 of 'Chapter LXXXIII of the Laws of 1897, amended
June 12, 1901, is hereby amended to read as follows: Sec. 3.
Personal property, for the purpose of taxation, shall be
construed to embrace and include, without especially defining and
enumerating it, all goods, chattels, stocks or estates; all
improvements upon lands, the fee of which is still vested in the
United States, or in the State of Washington, or in any railroad
company or corporation, and all and singular of whatsoever kind,
name, nature and description, which the law may define or the
courts interpret, declare and hold to be personal property, for
the purpose of taxation, and as being subject to the laws and
under the jurisdiction of the courts of this state, whether the
same be any marine craft, as ships and vessels, or other property
holden under the laws and jurisdiction of the courts of this
state, be the same at home or abroad: Provided, That the ships or
vessels registered in any custom house of the United States
within this state, which ships or vessels are used, exclusively
in trade between this state and any of the islands, districts,
territories, states of the United States, or foreign countries,
shall not be listed for the purpose of or subject to taxation in
this state, such vessels not being deemed property within this
state: Provided, That mortgages, notes, accounts, moneys, {*172}
certificates of deposit, tax certificates, judgments, state,
county, municipal and school district bonds and warrants shall
not be considered as property for the purpose of this chapter,
and no deduction shall hereafter be allowed on account of an
indebtedness owed."
It will be seen that the effect of the closing proviso of the
section is to exempt from taxation the items there enumerated.
If, therefore, the statute is a valid one, the appellant did his
duty; but if it violates constitutional limitations, the judgment
of the court was right. The constitutionality of the statute is
the only question involved in this appeal.
It is contended that the act is invalid because of insufficiency
of the title. The title is as follows:
"An act amending an act entitled, 'An act to amend section 3, of
chapter LXXXIII of the Laws of 1897, relating to revenue and
taxation,' passed the senate and the house June 12, 1901,
notwithstanding the veto of the governor, and declaring an
If it is necessary to pay strict regard to everything contained
in this title, then it is singularly involved. Reference to
chapter 83 of the Laws of 1897, to which the title refers as the
law amended by this act, discloses that it treats of monuments
and notices upon mining claims. It is manifest that the reference
to the former statute is a pure error, as the two acts relate to
subjects entirely separate and distinct. This title does however
further state the subject as "relating to revenue and taxation,"
and the body of the act clearly and succinctly treats of that
subject alone. The subject of exemption from taxation treated in
the body of the act is included in the general subject specified
in the title. We think the erroneous reference to the former
statute must be treated as mere surplusage, and inasmuch as
without that part of the title there is a clearly stated and
single subject which is followed by a clear treatment of that
subject in the act itself, the statute becomes an independent one
and has the effect of amending any existing statute upon the
subject and of repealing {*173} by implication any previously
existing provisions in conflict with it. We therefore hold that
the act is not invalid by reason of its title.
It is further urged that the act violates 1 and 2 of art. 7 of
the state constitution. Section 1 contains, among other things,
the following:
"All property in the state not exempt under the laws of the
United States or under this constitution, shall be taxed in
proportion to its value, to be ascertained as provided by law."
Section 2 is in part as follows:
"The legislature shall provide by law a uniform and equal rate of
assessment and taxation on all property in the state, according
to its value in money, and shall prescribe such regulations by
general law as shall secure a just valuation for taxation of all
property, so that every person and corporation shall pay a tax in
proportion to the value of his, her or its property: Provided,
That a deduction of debts from credits may be authorized."
It is argued that the exemption of the items mentioned in the
statute violates the constitutional provision of 1 quoted
above, which requires that all property in the state shall be
taxed except such as is exempt under the laws of the United
States or under the constitution of the state. It is contended
that credits such as mortgages, notes, and accounts, are property
and cannot be excluded by the legislature from the subjects of
taxation. The argument assumes that all property in the state
cannot be taxed without the taxation of credits Is the assumption
correct? The constitution simply requires that all property
shall be taxed, but the method of doing it is left to the
legislature. If the method devised by the legislature reaches all
property in fact, then there is no violation of the constitution.
It is possible to assess the same property in different ways any
one of which would subject the entire property to the tax. For
example, one person may own the fee title to real estate and
another may own an easement or a {*174} leasehold therein. All of
these are property, but it cannot be successfully maintained that
all of them must be taxed in order to satisfy the constitution.
The state taxes the land as an entirety and leaves the owners of
the several interests to make such adjustments as they choose.
The constitutional requirement that all property shall be taxed
is certainly satisfied through a method by which the total of all
wealth in the state is once taxed. Double taxation should be
avoided as far as possible, and in any event the constitution
should not be so construed as to require it. In an effort to tax
all property it is, however, difficult to avoid double taxation
in some particulars. The complexity of established business
methods is such that property appears and then reappears in
representative forms. The actual property of a corporation
reappears in the hands of its stockholders in the shape of
corporate stock. That the taxation of the corporate property and
also of its capital stock amounts to double taxation was
recognized by this court in Lewiston Water & Power Co. v. Asotin
County, 24 Wash. 371, 64 P. 544. The court observed in that case
as follows:
"But, as we have seen, the assessment of the capital stock of a
domestic corporation which has all its property in which the
capital stock is invested already assessed is duplicate taxation,
and this latter result will not be inferred without specific
legislation. It may be further observed that 1676, Bal. Code,
in providing the method for the assessment of domestic
corporations such as this, does not contemplate duplicate
See, also, Ridpath v. Spokane County, 23 Wash. 436, 63 P. 261.
All the provisions of the constitution on the subject of taxation
cannot be fully and literally met. For purposes of present
consideration these provisions may be stated as follows: "All
property" shall be taxed. The assessment shall be "uniform and
equal," and a "just valuation" shall be placed upon all property,
so that every person shall pay a tax in proportion to the value.
No method of taxation in its {*175} results can fully accomplish
all that the constitution declares shall be done. As near an
approach to a full compliance as is reasonably possible is all
that can be expected of the legislature. One requirement of the
constitution is as mandatory in its nature as another. It is just
as imperative that taxation shall be uniform and equal upon all
property as it is that all property shall be taxed. It is
manifest that a system which subjects some property to double
taxation is not uniform and equal. Any method which can be
devised by the legislature must necessarily be defective in some
particulars and must fail to meet with exactness every standard
set by the constitution. Any method adopted by the legislature
which reasonably comprehends the taxation of all property once in
some form, and which seeks to accomplish uniformity by avoiding
double taxation as far as possible, should receive judicial
sanction, for the reason that the constitutional provisions are
harmonized by such a method as fully as complete harmony
thereunder can be accomplished.
It will be seen that the items specified by the statute of 1907
which shall not be considered as property for the purposes of
assessment and taxation, may all be classified as "credits,"
except the item of "moneys." So far as credits are concerned, if
it is demonstrable that the total wealth of the state can be once
taxed without the taxation of credits in any form, we think the
constitution is satisfied without the taxation of credits. The
multiplicity of credits does not add to the property wealth of
the state. If A buys of B a piece of real estate and agrees, by
promissory note or otherwise, to pay $ 5,000 therefor, there is
as a result in the hands of B a credit in the amount of $ 5,000,
but there is not thereby created $ 5,000 more property or wealth.
By the transaction the land has passed from B into the possession
and control of A and is taxable the same as if it had remained
with B. The credit in the hands of B is a matter of no value or
consequence, except for the prospect or faith that A will in the
future deliver to B $ 5,000 in actual money or other property.
{*176} That money or property that may in the future come to B is
still in the hands of A or some one else from whom A will procure
it; and it is meanwhile taxable at some place, wherever it may
be, no matter who possesses it or controls it, whether within or
without this state. The credit in the hands of B is simply the
right to demand the delivery of $ 5,000 worth of property at some
time in the future. To tax both this right and the property which
it represents is clearly double taxation.
A similar illustration applies to a loan of money. At this point
it is proper to remark that we think moneys cannot properly be
classified with credits as is done in the statute of 1907. Money
in practical commercial operations possesses such value by way of
immediate purchasing or exchange powers as in effect robs it of a
mere representative character and clothes it with the dignity of
property having intrinsic value. We therefore think that the
proviso in question must be held to be inoperative so far as
money is concerned, since to exempt it from taxation would amount
to a palpable effort to avoid the taxation of all property.
Recurring now to the illustration as to a credit created by the
loan of money, we will suppose that A borrows from B $ 5,000 in
cash. A, instead of B, becomes the possessor of the money, and
either it or its equivalent in other property which it purchases
for A becomes taxable in the latter's hands. To tax the money in
A's hands and also the mere right which B has to call upon A for
its repayment is clearly double taxation. These illustrations it
is believed should apply to all credits. Credits are in effect
the mere legal right with which one is clothed to demand the
delivery of money or other property in the future, and until such
transfer of possession is made, that property is taxed wherever
it may be. Thus the total actual property or wealth of the state
may be once taxed without the taxation of credits, and the
constitutional requirement is thereby fully met.
{*177} In People v. Hibernia Bank, 51 Cal. 243, 21 Am. Rep. 704,
it was held, under constitutional provisions similar to ours,
that credits are not property subject to taxation, within the
meaning of the constitution which provides for the uniform
taxation of all property in the state in proportion to its value.
It is not necessary in order to sustain our statute of 1907 that
it should be held, as was done in California, that the
legislature cannot in its discretion provide for the taxation of
credits. It is sufficient to say that the omission of credits
from a scheme of taxation does not violate the requirement that
all actual property shall be taxed. It is argued that State ex
rel. Chamberlain v. Daniel, 17 Wash. 111, 49 P. 243, is decisive
of this controversy in favor of respondent. The act there under
consideration exempted from taxation in the hands of each person
$ 500 of personal property and $ 500 of improvements upon land.
It will be seen that the act exempted actual property, and its
enforcement would have deducted a large amount from the aggregate
of the actual property wealth of the state as not taxable, thus
plainly violating the requirement that all property shall be
taxed. We have seen that the statute under discussion in the case
at bar does not prevent the taxation of the total wealth of the
state once, but it does prevent double taxation by way of
assessing credits. The case cited is therefore not in point upon
the question presented here.
It is urged that the makers of our constitution must have
intended to declare that credits are property which must be
taxed, from the fact that 2 of art. 7, supra, provides that "a
deduction of debts from credits may be authorized." It is
insisted that the above words are a clear constitutional
recognition of credits as property. If, however, we should
recognize the argument as forcible and should undertake to adopt
it, we should at once be met with the requirement in the same
section that all taxation shall be uniform and equal. We have
seen that the taxation of credits violates uniformity and {*178}
equality and effects double taxation. The great and principal
subject treated in the section is that of uniformity and equality
of taxation. It overshadows everything else, and whatever else is
mentioned in the section is merely incidental to the main
subject. Having reference to the main subject, it cannot be held
that uniformity can be preserved if the constitution means that
credits must be taxed. It is our duty to adopt such construction
as will most nearly harmonize all provisions in the section, with
the evident chief purpose sought to be accomplished.
With the mere policy of the statute, the courts have nothing to
do, except in so far as the same may throw light upon the
legislative intention. It may be stated in this connection, as a
matter of common knowledge, that one of the most fruitful sources
of inequality in taxation is the attempt to tax credits. Laws for
that purpose can never be effectively enforced. Efforts to
conceal the existence of the credits are so successful that a few
honest persons pay the taxes and the large majority of holders do
not. Moreover, in practical experience, the tax is not really
paid by the holders of the credit, but it is paid by his debtor.
When mortgages are taxed, the mortgagee seldom pays the tax, but
the burden thereof is imposed upon the mortgagor by way of
increased rates of interest or otherwise, and the same may be
said as to increased rates of interest imposed upon borrowers
generally. Such results cannot well be avoided, and doubtless the
legislature had such considerations in mind as supporting the
policy of this law. It was no doubt believed that all the wealth
of the state can be once taxed without the taxation of credits,
and that with the constitutional requirement as to taxation of
all property thus satisfied, uniformity and equality can be the
better effected and the abuses above mentioned largely corrected.
We therefore think, for the foregoing reasons, that the statute
is not unconstitutional, except in so far as it attempts to
exempt moneys from taxation. That, however, does not invalidate
the other provisions, as has been often held. The {*179} general
demurrer was properly overruled, inasmuch as a cause of action
was stated so far as listing of moneys is concerned, but the
judgment should be modified so as to command the respondent to
list all moneys for taxation, and further provide that all credit
items mentioned in the statute of 1907 shall be excluded from the
assessment lists. It is so ordered, and the cause is remanded
with instructions to so proceed. The appellant shall recover the
costs on appeal.
FULLERTON, J. (dissenting) --
I am compelled to dissent both from the conclusion and judgment
in this case. The decision is rested, as I understand it, on
three propositions: (1) that credits are not property; (2) that
to tax credits violates the principle of equality and uniformity
in taxation required by the constitution; and (3) that credits
are taxed by the taxation of the tangible property of the state.
As the questions decided are important, I feel justified in
briefly stating the grounds of my dissent.
(1) The constitutional provisions on the subject of taxation
appropriate to the questions before the court are set out in the
majority opinion, and need not be reproduced here. A reading of
them makes it at once manifest that it was the purpose and intent
of the framers of the constitution, as well as that of the people
who adopted it, to require for the purposes of revenue the
taxation of all private property in the state, of whatsoever kind
or nature, equally and uniformly, in proportion to its value in
money. The language is explicit. It admits of no limitation or
construction. "All property" is named, and the only exception
provided for is that a deduction of debts from credits may be
authorized. The questions therefore naturally arise what is meant
by the word "property" and in what sense was the word used in the
That mortgages, notes, accounts, moneys, certificates of deposit,
tax certificates, judgments, state, county, municipal {*180} and
school district bonds and warrants, are property in the general
and popular sense of that term hardly admits of doubt. They are
so termed and considered by all English-speaking people, by all
law writers, and by the entire commercial world. They are held by
the courts to be protected against spoliation and theft by the
statutes which make it a crime to despoil or steal personal
property. The question of ownership and title to them is daily
the subject of controversy in the civil courts. They are daily
the subject of barter and sale in all the marts of commerce. They
have value in money, and constitute and make up the most
satisfactory character of wealth that mankind possesses. In fine,
they have all the attributes of property. These propositions are
matters of common knowledge, and citations of authorities are not
necessary to establish them.
That the word "property" was used in the constitution in its
general sense seems to me also to be free from doubt. It is a
cardinal rule of construction that the language of a state
constitution, more than that of any other written instrument, is
to be taken in its general and popular sense. The reason for the
rule lies in the fact that its makers are the people who adopt
it. Its language is their language, and its words have meaning as
they commonly understand them. When, therefore, words are used
which have both a general and a technical sense the former must
prevail over the latter, unless the very nature of the
subject-matter indicates, or the context suggests, that the
technical sense was intended. In the sentence on which the word
"property" is used in the constitutional provision quoted there
is no attempt at definition. It is used without connection with
any sentence or phrase which limits its meaning. Nor is there
elsewhere any limitation upon its meaning. Indeed, there is no
reason for concluding that the word was used other than in its
general sense.
That the makers of the constitution had the right to provide for
the taxation of credits, if they so desired, I think will be
conceded. It will be conceded also that this could be done {*181}
by the use of general terms. Therefore, it being true that the
obligations here enumerated are "property" in the general sense
of that term, and it being true that the constitution makers used
the term "property" in its general sense, it must follow that the
constitution requires the taxation of these obligations.
But there is another reason more potent to my mind than even the
foregoing, which shows that the framers of the constitution
intended to provide for the taxation of credits by the use of the
general term "property." They authorized the legislature, when
providing the method of taxation, to allow a deduction of debts
from credits. Clearly, if it had not been understood that credits
were property and taxable as such, this deduction would not have
been authorized.
(2) Does the taxation of credits violate the principle of
equality and uniformity in taxation required by the constitution?
The affirmative argument is, that to tax these obligations is
double taxation. Thus it is said that if A loans B $ 5,000, and
takes B's obligation to repay that sum, it is double taxation to
tax the obligation in A's hand and the money in B's. But if this
be true, and the obligation be property, I cannot understand how
the rule of uniformity and equality is advanced by exempting the
obligation. It seems to me that this but further confuses the
matter. It cannot be said that the obligation is doubly assessed.
If any property is doubly assessed it is the money, and to exempt
the obligation exempts the wrong thing. But it is not sound for
another reason. When A, the money loaner, loans to B, the
borrower, $ 5,000, and takes his obligation to repay the loan,
A's wealth is not thereby decreased $ 5,000, nor is B's wealth
increased $ 5,000. The parties have only made an exchange of
wealth, and each has exactly the same amount of wealth he had
before. If, therefore, each paid taxes on $ 5,000 before the
exchange, in justice and equity each ought to pay taxes on a like
amount thereafter. The law as it heretofore existed, however,
seems to have made A pay, after the exchange, {*182} on $ 5,000
and B on $ 10,000. To correct the evil the legislature relieves A
entirely, still leaving B to pay on double the amount he
possesses. This to my mind is not equality and uniformity in
taxation. Nor do I think any law can equalize taxes which exempts
from taxation the creditor class. The burden of double taxation
never falls upon them. It falls in every instance upon the
property-holding debtor class, since it is the debtor who does
not have the absolute interest in the property he possesses. Laws
which allow the debtor to deduct from the assessed value of his
property debts in good faith owing by him have, for that reason,
a sense of equity, but there is no sense of equity or justice in
exempting from taxation money and credits.
(3) Finally, it is said that credits are taxed in other forms of
property, and for that reason their exemption from taxation as
credits is justified. The argument in support of this proposition
is that credits are but representations of interests in the
tangible property of the state, and that when the tangible
property of the state is taxed all the wealth within the state is
taxed. But I must dissent from this proposition also. It
assumes, what is obviously not the fact, that there is no wealth
in credits independent of tangible property. Suppose that
tomorrow a person should come into this state from some other
state bringing with him stocks and bonds to the value of a
million dollars of some solvent railroad corporation whose lines
do not touch this state, would any one say that he had brought no
wealth into the state, or that the wealth of the state had not
been increased? Or, would any one say that these stocks and
bonds were taxed by the taxation of the tangible property of the
state? Obviously not. How then can it be said that the wealth of
the state is taxed by the taxation of its tangible property? It
is no answer to say that these bonds are taxed by the taxation of
the railroad in another state. This does not satisfy our own laws
which require that all property within the state be taxed. Nor
does it satisfy the justice of the matter. So long as this {*183}
property is within the state it requires the care and protection
of the laws of the state, and it is only right that it should
contribute its proportionate share to the maintenance of the
state. Furthermore, if credits be property in any form, they must
be taxed as property. The constitution does not recognize
vicarious taxation. The requirement that all property must be
taxed means that it must be taxed directly, in the form it
presents itself when the assessment lists are made up, not in the
form of substitutes.
Again, it is suggested in this connection, and it is a common
argument used in support of laws of this character, that credits
escape taxation in the major part through the dishonesty of their
holders, and that, when they are found, the tax is paid by the
debtors in the way of increased interest. But this does not
appear to me to argue in favor of the exemption of credits. If
the laws are so lax as to permit credits to escape taxation, the
remedy is to reform the law, not to exempt credits. It will not
do to say that no tax law can be framed that will reach credits.
This is no place to point out remedies, but when the law places
the premium upon honesty instead of upon dishonesty in these
matters, the evil will disappear. But, supposing it be true that
a goodly part of the credits of the state will escape the
assessor under the best framed law, is it not better that the
part that can be reached be taxed than that all be allowed to
escape? No one pretends that the assessor reaches all of the
tangible personal property in the state, yet I have never heard
this given as a reason for the exemption from taxation of all
tangible personal property.
The claim that the borrower pays the taxes on credits in the way
of interest is only true in a general sense. It is true in the
sense that the renter pays the taxes on rented land in the way of
rents, that the builder pays the taxes on the manufacturing
plants when he pays the cost of the building material, that the
consumer pays the tax on the products he consumes when he pays
the price of the consumed products, {*184} but it is true in no
other sense. The rate of interest is regulated by law in this
state, and it is this law that governs interest rates. Experience
has shown that it is only by law that the exaction of excessive
and exorbitant interest can be prevented. It is never done by
freeing money and credits from taxation. Nor is interest lessened
to any material extent thereby. This is so because freedom from
taxation is only one, and a minor one, of the many conditions
that regulate rates of interest. The maximum rate allowed by law
is always exacted if the demand for money at the time justifies
it, regardless of other conditions, and the fact that credits are
or are not taxed is hardly considered as an element when
determining whether the maximum rate shall be exacted.
But these latter considerations are beside the question. If the
constitution declares that notes, accounts, moneys, certificates
of deposit, and the like, are property and taxable as such, the
legislature is without power to exempt them from taxation, and
any statute attempting so to do is void. I believe it has so
declared, and for that reason I think the judgment of the lower
court should be affirmed.