Federal Land Bank of New Orleans v. Crosland/Opinion of the Court

by Oliver Wendell Holmes, Jr.

United States Supreme Court

261 U.S. 374

Federal Land Bank of New Orleans  v.  Crosland

 Argued: March 7, 1923. --- Decided: March 19, 1923

This is a petition for a writ of mandamus to require the recording officer of Montgomery county, Alabama, to record a first mortgage deed on receiving the fee for recording the same, without payment of an additional sum of fifteen cents for each one hundred dollars of the principal sum secured. The General Revenue Act of the State approved September 15, 1919 (Acts Ala. 1919, p. 420), by section 361, Schedule 71, provides that no mortgage shall be received for record—

'unless the following privilege or license taxes shall have been paid upon such instrument before the same shall be offered for record, to wit: * * * Upon all instruments which shall be executed to secure an indebtedness of more than one hundred dollars there shall be paid the sum of fifteen cents for each one hundred dollars of such indebtedness, or fraction thereof, which is secured by said mortgage * * * to be paid for by the lender, and no such paper shall be received for record unless there is filed therewith a certificate that the privilege tax was paid by the lender.'

Any probate judge who shall receive a mortgage without collecting the 'recording or registration tax,' etc., is made guilty of a misdemeanor and punished.

On the other hand the Federal Farm Loan Act of July 17, 1916, c. 245, § 26, provides that first mortgages executed to Federal Land Banks shall be deemed—

'instrumentalities of the government of the United States, and as such they and the income derived therefrom shall be exempt from federal, state, municipal, and local taxation.' 39 Stat. 360, 380 (Comp. St. § 9835q).

The validity of this provision is not questioned. Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 207, 212, 41 Sup. Ct. 243, 65 L. Ed. 577. Of course therefore it must prevail over any inconsistent laws of a State.

The tax was sustained by the Supreme Court of the State and the petition for mandamus was ordered to be dismissed on the ground that the payment was optional; that the Federal Land Bank was not required to put its deed on record, and that if it did it must pay whatever others were required to pay for the registration of its security. But the case is not quite so simple as that. The law of Alabama does make it practically necessary to record such deeds, because it overrides them if not recorded, in favor of any purchaser without notice. While it does so it cannot say that it leaves the Bank free to record or not. The bank has a choice it is true, but so has one who acts under duress. The Eliza Lines, 199 U.S. 119, 131, 26 Sup. Ct. 8, 50 L. Ed. 115, 4 Ann. Cas. 406.

The State is not bound to furnish a registry, but if it sees fit to do so it cannot use its control as a means to impose a liability that it cannot impose directly, any more than it can escape its constitutional obligations by denying jurisdiction to its Courts in cases which those Courts are otherwise competent to entertain. Kenney v. Supreme Lodge of the World, 252 U.S. 411, 415, 40 Sup. Ct. 371, 64 L. Ed. 638, 10 A. L. R. 716. It is not necessary to cite cases to show that an act may become unlawful when done to accomplish an unlawful end.

Of course the State is not bound to furnish its registry for nothing. It may charge a reasonable fee to meet the expenses of the institution. But in this case the Legislature has honestly distinguished between the fee and the additional requirement that it frankly recognizes as a tax. If it attempted to disguise the tax by confounding the two, the Courts would be called upon to consider how far the charge exceeded the requirement of support, as when an excessive charge is made for inspecting articles in interstate commerce. Foote v. Maryland, 232 U.S. 494, 34 Sup. Ct. 377, 58 L. Ed. 698. But it has made no such attempt. It has levied a general tax on mortgages, using the condition attached to registration as a practical mode of collecting it. In doing so, by the construction given to the statute by the Supreme Court, it has included mortgages that it is not at liberty to reach. The characterization of the act by the Supreme Court as distinguished from the interpretation of it does not bind this Court. St. Louis Southwestern Ry. Co. v. Arkansas, 235 U.S. 350, 362, 35 Sup. Ct. 99, 59 L. Ed. 265. St. Louis Cotton Compress Co. v. Arkansas, 260 U.S. 346, 43 Sup. Ct. 125, 67 L. Ed. --, December 4, 1922. It is said that the lender may collect the money in advance from the borrower. We do not perceive that this makes any difference. The statute says that the lender must pay the tax, but whoever pays it it is a tax upon the mortgage and that is what is forbidden by the law of the United States.

A petition for certiorari presented by the plaintiff in error for greater caution will be dismissed.

Decree reversed.

Notes