rejected Lowry's offer to prove he could have protected himself against the note in his settlement, if the bank had notified him of its existence.

and all the instructions confined the jury to consideration of the note, authority to execute it, and action within it. Plaintiff's instruction No. 2 submitted the question of right of recovery on the note only, and the one given for the defendant was limited to the note. All the evidence adduced pertained to the same alleged right. The jury cannot be deemed to have based their verdict upon any other ground. Manifestly they did not.

Defendant's instructions Nos. 4 and 5 were properly refused. They would have told the jury, in substance, that the plaintiff could not recover, if Stover executed the note for his individual purposes. That, if true, could not have affected the bank, unless it had notice of it, and requirement of this vital element was wholly omitted from each of them.

[6-8,11] The elimination of so much of defendant's instruction No. 1 as would have told the jury the purchaser or taker of a firm note is bound to use ordinary diligence to ascertain whether a partner offering it sign ed the firm name to it for the purpose of paying his individual obligations, or securing his individual or private debt, or procuring money for his individual credit or purpose, was manifestly proper. With that out, the instruction told the jury the bank's knowledge of such fact would preclude right of recovery against the other partner. It might have gone further and asserted such preclusion of right, if the bank had good reason to be lieve the note was executed for individual and not firm purposes, or knowledge of facts An untenable objection was set up to sufficient to arouse a suspicion. As pro- plaintiff's instruction No. 1, which told the posed, the instruction did not include this jury any one of the partners had implied alternative proposition. After striking out power to borrow money and give the firm the improper phrase referred to and another mercantile paper therefor, if they believed clause, the court gave the residue of the in- the firm "was engaged in the milling busistruction in the form in which it was pre-ness, buying wheat and corn, and manufacpared. As modified and given, it substan- turing the same into flour, meal, mill feed, tially stated the law enunciated in Tompkins | and other products, though it may have done & Madden v. Woodyard, 5 W. Va. 230, the some custom grinding." Other instructions only authority cited in support of the as- given limited the right of borrowing on firm signment of error, and both modifications paper to firm purposes, wherefore the omiswere proper, unless the elimination of the sion of that limitation from the one in quesother clause, just mentioned, but not de- tion was a harmless defect, if it was a described, was an erroneous act. That part fect at all. To the extent of the terms used, would have told the jury the admissions and the instruction was correct, and its incomstatements of Stover, if any were made, un- pleteness was remedied by others given. der the circumstances therein stated, the State v. Kellison, 56 W. Va. 690, 47 S. E. making and negotiation of the note sued 166; State v. Prater, 52 W. Va. 132, 43 on, were not evidence of the assent of Lowry S. E. 230; State v. Snider, 94 S. E. 981. to the use of the firm name on the note. Total lack of evidence of such admissions and statements justified the elimination of that clause. Parker v. B. & L. Ass'n, 55 W. Va. 135, 46 S. E. 811; Kuykendall v. Fisher, 61 W. Va. 87, 56 S. E. 48, 8 L. R. A. (N. S.) 94, 11 Ann. Cas. 700.

Defendant's instruction No. 2 was properly refused, for embodiment therein of a condition or provision for which there was no basis in the evidence, viz. the bank's knowledge of lack of authority in Stover to execute the firm's note. He had implied authority, as a partner, to do so, in the absence of proof of a limitation thereof known to the person to whom the paper was offered.

Stover, or the cashier, at his instance, placed the proceeds of the discounted note to his individual credit in the bank, and this fact is relied upon as being one sufficient, in and of itself, to put the bank upon notice of fraudulent intent on the part of Stover, or as proof of an act in excess of his authority as partner and agent. He had previously discounted two other notes of the firm to the bank, one for $100 and the other for $300, placing the proceeds to the credit of the firm, in each instance. He paid off the first one with his individual check, before he negotiated the $350 note in controversy. The $300 note was renewed in December, 1910, for three months. In the The court refused an instruction which, same month, the $350 note, payable one year if given, would have forbidden recovery on after date, was discounted. In March, 1911, any ground other than the express promise Stover paid the $300 note out of his individualleged and proved by the note. Such an al account. Out of the proceeds of the $350 instruction was approved in Pettyjohn v. note, he deposited $100 to the credit of the Bank, 101 Va. 111, 43 S. E. 203, and this firm. Whether he used the balance of the one might properly have been given in this proceeds of that note for individual purpos case no doubt, but the error in the refuses, for the time being, with the knowledge al thereof, if any, was entirely harmless. of the bank or its officers, does not appear. No right of recovery was asserted, in any In paying the $300 note, he more than re

[12] The deposit of the proceeds of the 12. STATUTES 225-HARMONIZING COGNATE note to Stover's individual credit, though ACTS-DUTY OF COURT. known to the bank, does not alone preclude right of recovery by it. Ex parte Bonbonus, 8 Ves. Jr. 540; Wood's Collyer, Part. vol. 1, § 505. In the case just cited, Lord Eldon said:

urged to render a speedy decision, and, notwithstanding an unusual pressure of work at that time, a conclusion was reached during the term at which the case was submitted, and an opinion was handed down on the 23d day of November, 1916, affirming the judgment of the lower court and holding against the validity of the tax in question.

Within the time prescribed by law, the city of Richmond filed a petition for rehearing, to which were added supplemental petitions from the boards of supervisors of various counties and from the State Tax Board of Virginia; these latter petitioners asking permission to come into the case on the ground of the serious and far-reaching effect of the decision on local taxation throughout the state.

It is proper to say that while two members of this court, as at present constituted, did not participate in the former decision, this rehearing was granted by the judges who heard and decided the case upon the first argument, including the learned and honored author of the former opinion, since retired.

When the cause came on to be reheard, it was very elaborately argued by the same able and distinguished counsel who appeared originally therein, and by others no less able and distinguished who subsequently came into it; and upon a further consideration we are of opinion that our former decision was erroneous. The writer of this opinion participated and concurred in that decision, and assumes his full share of responsibility for the mistake which he now believes was made. At the extra session of 1915, the General Assembly passed what is known as the State Tax Segregation Act, which, so far as it need be set out in this immediate connection, provides as follows:

Does it mean the prescribed rate of 30 cents mentioned in the segregation act, or does it mean that the local taxation of merchants' capital is to be controlled by other statutory provisions outside of the terms of that act? We feel constrained to recede from the opinion formerly expressed on this question and to adopt the latter view.

The words "as prescribed by law" were not apt and natural words to convey the. idea that local taxation on merchants' capital was to be limited to the rate fixed in the act. This language, in its inception, was a part of a proposed new law, and in its ordinary, natural, and usual sense would be understood to refer to something outside of the proposed law, either already a part of the existing statute law or thereafter to be enacted into a law by competent authority. If the purpose of the draftsman had been to restrict local taxation of the capital of merchants to the rate previously named in that particular act, undoubtedly he would have used the words "as prescribed by this act," or their equivalent, instead of "as prescribed by law."

If this be not true, then it would follow that "shares of stock of banks" could only be taxed locally at the 30-cent rate, for, as we think, it cannot be plausibly contended that the words "as prescribed by law," when applied in the act to merchants' capital, have any other or different meaning than the words "as provided by law" when applied therein to bank stock. The necessary result of the decision of this court in Tresnon v. Board of Supervisors, 90 S. E. 615, is that the local taxation of bank stock is not controlled by the terms of the segregation act.

Statutory provisions outside of the segregation act, contemplating and authorizing a tax on merchants' capital at such rate as the * All taxable intangible personal county and city authorities deem necessary property, rolling stock of all corporations operat- and proper, and thus responding to the exing railroads by steam, and all other classes of pression "as prescribed by law," are found in` property not herein before specifically enumerated in this act, be and the same are hereby seg- section 69 of the charter of the city of Richregated and made subject to state taxation mond (under which the tax here in question only; provided that nothing herein contained was levied), and in sections 833a and 1043 shall prevent any city from levying a tax upon of the Code and section 46 of the tax bill. said segregated intangible personal property assessed to the residents therein at a rate not to The purpose of the General Assembly seems exceed thirty cents upon the one hundred dollars to have been to leave merchants' capital to of assessed valuation thereof; that the capital of merchants shall not be sub- be taxed by localities practically as it had ject to state taxation, but may be taxed locally been prior to the passage of the segregation as prescribed by law; and the shares of stock act, and this becomes the more apparent upof banks * which shares of stock shall on a consideration of the terms of that act be taxed as provided by law." Acts 1915, p. in connection with the other kindred pro119, § 1. visions of the tax laws enacted at the same time. For example: The segregation act provides:

except

[1] It is conceded that the capital of merchants is "intangible personal property" within the meaning of the tax laws. By the express terms of the act quoted above, such capital is excepted from taxation by the state in the ordinary sense (that is, upon an ad valorem basis), and is therefore not within the class of intangible property segregated for state taxation, but is subject to be taxed locally "as prescribed by law." The ultimate and decisive question therefore is: What is meant by the phrase "as prescribed by law?"

"That nothing herein contained shall prevent any city from levying a tax upon said segregat ed intangible personal property assessed to the residents therein at a rate not to exceed thirty valuation thereof; nor to prevent the boards of cents upon the one hundred dollars of assessed supervisors of any county from levying a district road tax on all said segregated intangible personal property assessed to the residents in the magisterial district proposed to be taxed for district purposes to be used exclusively for the construction and repair of roads located within

This provision, in practically the same lan-ed, namely, the segregation act, the amendguage, was carried into section 9 of the act known as the tax bill (Acts 1915 [Ex. Sess.] p. 162). It clearly appears therefore that counties, in taxing the intangible personal property segregated for state taxes, are limited not only as to rate but also as to the purposes for which the levy is laid, namely, district road purposes. Now, when we come to look to section 46 of the tax bill, which expressly provides for a state license tax upon the business of merchants, we find a provision which is wholly inconsistent with the one last quoted from the segregation act, if the latter act be construed to limit the local rate of taxation on merchants' capital to 30 cents on the $100. This provision in section 46, so far as it need be quoted here, is as follows:

992

ent in the subject, it is not surprising to find that the General Assembly, in launching a new but tentative and partial segregation plan of taxation, should have refrained from disturbing the status of the tax laws as to this particular class of property. A judicial construction in keeping with this natural and probable legislative purpose will avoid the conflict above pointed out, and will harmonize all the provisions of the law enacted on the subject at the extra session of 1915. The effect will be to take from the general class of intangible personal property segregated to the state, the capital of merchants, and place it, as heretofore, in a class to itself.

the classification for the purpose of local taxation and not for the purpose of state taxation.

The conclusion that merchants' capital was not intended to be embraced in schedule C is fortified by the further consideration that such capital, notwithstanding the use of practically the same language which is now claimed to include it, has never been treated as embraced therein since the tax bill was first framed by the act of April 16, 1903 (Acts 1902-3-4, pp. 155, 158). If this class of property is included in the expression "all personal property embraced in this schedule," under the act as amended March 17, 1915 It is earnestly insisted on behalf of the (Acts 1915, p. 160), it has been so included ever since the passage of the original act, and defendants in error that their capital is embraced in the classification of "intangible therefore always, formerly and now, it has personal property" and in the classification | remained, under the terms of section 9, suband provisions of schedule C of the tax bill, ject to a property tax by the state. It has and that this fact is conclusive in their fa- not been so construed, but upon the contravor. We are of opinion, however, that while ry, ever since the passage of the tax bill, the such capital may, upon a casual reading, ap- state has continued its long previously espear to be included in that classification, yet tablished practice and policy of taxing merwhen sections 8 and 9 of the schedule are chants by a license tax, based not on capital read in connection with other provisions of but on purchases, thus carrying into prac the tax laws, particularly the segregation act tical effect the very construction which we itself and section 46 of the tax bill, it is think necessarily results from a synthetic clear that the capital of merchants was not view of the terms of the several statutes enintended to be embraced within this classifi- acted upon the subject by the General Ascation, but that the same is expressly ex-sembly in 1915 and now under consideraSection 9, tion. cepted and excluded therefrom. as amended (Acts 1915 [Ex. Sess.] c. 117), provides that taxes on intangible personal property shall be as follows:

*

"On all property embraced in classes 1, 2, 3, 4, 5 and 7 in this schedule there shall be a tax of sixty-five cents on every [one] hundred dollars of the assessed value thereof, which shall be paid into the state treasury and applied to the payment of the expenses of the government. And any city in this state may levy a tax on such property assessed to residents therein at a rate not to exceed thirty cents on the one hundred dollars of assessed valuation thereof; and the board of supervisors * may levy a district road tax on such property," etc. [3] We think that the language, "such property assessed to residents therein," used in the act to designate the property as to which cities and counties are restricted to the 30-cent rate, means property assessed for state taxation. There is not, as we understand, any contention that merchants' capital, by virtue of the terms of schedule C, may be taxed by the state upon an ad valorem basis. This result is absolutely precluded by the terms of the segregation act and of section 46 of the tax bill. And yet, if we were to hold that the capital of merchants is in terms included in the classification of the schedule, and is therefore subject to the restricted local rate, it would inevitably follow that such capital is likewise subject to the rate therein specified of 65 cents for state purposes, because there is nothing in the language of sections 8 and 9 of the tax bill to warrant an argument that such capital was intended to be embraced in

[4, 5] We think the foregoing conclusions necessarily flow from an independent view of the statutes germane to the inquiry; but, if it be conceded that the question is a doubtful one, then we should give due weight to the interpretation placed upon these statutes by that branch of the executive department of the state which is specially charged with the duty of construing and effectuating their provisions. It appears that the construction we have adopted is in accord with that which has been acted upon by the State Tax Board, composed of the Governor, the Auditor of Public Accounts, and the chairman of the State Corporation Commission. Under advice from that board, more than three-fourths of the counties of the state have applied a similar construction. It is true that the rule of interpretation which permits the courts to look to the prac tical construction adopted by executive officers is usually applied to cases in which such construction has continued and been acquiesced in for a long period of time; but it is not to be confined to such cases. One reason for the rule is that the officers charged with the duty of carrying new laws into effect are presumed to have familiarized themselves with all the considerations pertinent to the meaning and purpose of the new law, and to have formed an independent, conscientious, and competent expert opinThe segregation plan was ion thereon. adopted in pursuance of a special provision