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is to be levied. When official discretion is thus left unguided by a prescribed system, “it is impossible to adopt rigid rules of valuation for property, the value of which depends upon so great a variety of elements, and such rules can only be general in their character, and must be subject to modification in individual cases. A wide discretion is necessarily vested in the officers charged with the duty of fixing values and absolute certainty is not possible under such conditions."
60 Alb. Law Journal, 284. As to whether the Georgia Statute gives the right to assess a corporation upon the privilege of being a corporation, or for its good will, or the choice and conduct of its business, seems questionable.
(Compare J. Newton Fiero's views in 60 Alb. Law Journal, p. 284.)
It should be noted, also, that the right to exist as a corporation is not a franchise of the corporation, but of the incorporators.
Waring v. Ga. Med. Soc., 38 Ga. 626.
837 (841). Am. & Eng. Encyc. Law, 2nd Ed., Vol. 14, p. 6. Commercial good will being intangible property, is subject to be taxed, when the provisions of the taxing act are broad enough to include it under the term franchise.
Am. & Eng. Encyc. Law, 2nd Ed., Vol. 14, p. 1086.
Hart v. Smith (ind.), 64 N. E. 661. Section 4077 of the Compilation of the Kentucky Statutes of 1894 is very similar in language to section 1 of the Georgia Franchise Tax Act, and in the case of Adams Ex. Co. v. Kentucky, (166 U. S. 171, 41 L. ed. 960), the United States Supreme Court says that the word “franchise,” as used in this Kentucky statute, is not employed in a technical sense, but that as construed in connection with other sections of the Act, which proceed upon the homogeneous unit theory of taxation, it is plain that the Kentucky Legislature intended by this term to tax the value of all intangible assets of the corporation. The Georgia Act contains no such provisions, authorizing the unity of use theory, and it is not believed that the word “franchise,” as used in this statute, will be extended by construction to the extent it has been, as used in the Kentucky law.
An old and established newspaper business recently sold in one of our cities for $40,000.00 at public sale. Its tangible assets were worth much less than this amount, the chief factor in determining the price paid being the established reputation and good will of the business. It would seem to be an unjust discrimination that this commercial good will should be taxable if the proprietor happened to be a corporation, while only the tangible property would be, if the proprietor were a private person.
Still the statement of Justice Brewer in the Ohio Express Company cases (166 U. S. 185, 41 L. ed. 965), that “whatever property is worth for purposes of income and sale, it is also worth for the purpose of taxation," appeals to the impartial judgment.
The Georgia Statute places great power in the hands of the tax officers, and, as has been said by Chief Justice Andrews, in a New York case, “In making inquiry and collecting the facts, they are not bound by the strict rules which govern ordinary judicial proceedings. If they act in good faith, upon their best judgment, upon reasonable grounds, and they do not err in the principle of the assessment to the prejudice of the taxpayer, their decision cannot be overruled.”
This paper, already too long, I fear for this occasion, has only skimmed lightly the great subject allotted to it. Its phases are manifold, and I can commend the subject to the Bar as one which can be pursued much further with great pleasure and instruction.
THE EVOLUTION OF THE FOURTEENTH AMEND
The Congress of the United States, on the 16th day of June, 1866, by joint resolution proposed to the legislatures of the several States an Amendment to the Constitution of the United States, known as the Fourteenth Amendment.
This amendment consists of five separate sections. The first of these sections and the most important thereof is as follows:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws."
The remaining sections of this amendment relate to comparatively indifferent matters. This amendment required the votes of three-fourths of the States to secure its adoption. The whole number of States in the Union was thirty-seven and three-fourths of thirty-seven is twenty-seven and a fraction, and as there could be no fractional part of a State, it required the votes of twentyeight States.
On the 20th day of July, 1868, Wm. H. Seward, the then Seoretary of State, issued his proclamation, in which he declared that certain States, enumerating them, to the number of twentynine, had voted in favor of the adoption of the amendment; at the same time, he stated that it further appeared from official documents on file in the Department of State, “that the legislatures of two of the States above enumerated, to-wit, Ohio and New Jersey, had since passed resolutions respectively withdrawing the consent of each of said States to the aforesaid amendment; and, whereas, it is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid and therefore ineffectual for withdrawing the consent of the said two States or either of them from the aforesaid amendment,” he declares that the twenty-nine States enumerated in said proclamation and including Ohio and New Jersey together constituted three-fourths of the whole number of States of the United States; and he therefore certified that if the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid amendment are to be deemed as remaining of file and of force, notwithstanding the subsequent resolutions of the legislatures of those States which purport to withdraw the consent of said States from such ratification, then the aforesaid amendment had been ratified in the manner hereinbefore mentioned, so as to become valid to all intents and purposes, as a part of the Constitution of the United States.
On the 21st day of July, 1868, one day after the proclamation of W. H. Seward, Secretary of State, above referred to, a joint resolution was passed, through both Houses of Congress, declaring “that said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.”
It is very evident that the authorities at Washington were not satisfied that the vote of a sufficient number of States had been received to declare this amendment a part of the Constitution of the United States; therefore, strenuous efforts were immediately made to get the vote of another State which would make the necessary three-fourths vote required by the Constitution, with
out the vote of Ohio and New Jersey, who had withdrawn their assent before the announcement of the result.
So that we see that on the 28th day of July, 1868, just seven days after the first proclamation, another proclamation was issued by William H. Seward, in which he shows that the legislature of Georgia rejected the Fourteenth Amendment on the 13th day of November, 1866, and that the legislature of the same State ratified it July 21, 1868, so that by counting the vote of Georgia, there were thirty States, including Ohio and New Jersey, in favor of the adoption of the Fourteenth Amendment, which left twenty-eight States not including Ohio and New Jersey, in favor of the Fourteenth Amendment. The same argument which applied to the change of its vote by Ohio and New Jersey would certainly have applied to the State of Georgia, which had rejected the Amendment on November 13, 1866, and afterwards ratified it on July 21, 1868.
Several of the Southern States which were counted in the voteadopting this amendment had previously rejected it, to-wit, North Carolina and South Carolina, and if their first action was invalid, then certainly, their second action in ratifying it was invalid; but Georgia's vote was needed at any cost, and it is a little singular that the published Acts of the legislature of 1868 of the State of Georgia nowhere show the adoption of a resolution accepting the terms of the Fourteenth Amendment. We only find it referred to in the Second Volume of the Documentary History of the Constitution of the United States of America on page 792, in which reference is made to the fact that the State of Georgia ratified the Fourteenth Amendment on July 21, 1868.
Was not the action of Congress as expressed by its joint resolution of July 21, 1868, final and conclusive, so far as its powerover the subject matter was concerned? If Congress had a right to assume that Ohio and New Jersey could not withdraw their affirmative vote on the adoption of the Fourteenth Amendment, then could Congress legally count the vote of North Carolina, which the second proclamation of Secretary of State William H.
Seward shows was cast against the adoption of said Amendment · on December 4th, 1866, and was ratified by the same State on