48 P. 291 | Ariz. | 1897
Lead Opinion
The Consolidated National Bank of Arizona is a corporation duly organized under the laws of Congress as a national bank, having its place of business at Tucson, Pima County, Arizona, with a capital of fifty thousand dollars, divided into five hundred shares, each of the par value of one hundred dollars. It is admitted that in 1893 the-assessor of Pima County attempted to assess the shares of said bank, and listed and assessed one hundred of said shares to H. B. Tenney, as follow, to wit: “H. B. Tenney, cashier Consolidated National Bank, Tucson, personal property, value $10,000”; and that he listed and assessed the other four hundred shares as follows, to wit: “Unknown owners, personal property, value $40,000.00.” Said lists were returned and passed upon and equalized by the board of supervisors of said county, as a board of equalization. No one appeared before said board on behalf of said Tenney or said bank to have said lists corrected or altered, and they were duly entered on the tax-roll for said year. There was listed and assessed for said year as the property of said Tenney other personal property in addition to said one hundred shares of bank stock, on which he afterwards, in due time, paid the taxes. Said bank also paid the taxes on all property assessed to it. Appellants, as plaintiffs, filed a joint complaint against appellees, as defendants,
By decisions of the supreme court of the United States too numerous to cite it has been determined that, without congressional authority, national banks cannot be taxed by the states. By section 5219 of the Revised Statutes of the United, States the authority to tax national banks is given as follows: “Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the state within which the association is located; but the legislature of each state may determine and direct the manner and place of taxing all the shares of national banking associations, located within the state, subject only to the two restrictions, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state, and that the shares of any national banking association owned by non-residents of any state, shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either state, county, or municipal taxes to the same extent, according to value, as other real property be taxed.” The legislature must by law, determine and direct the manner and place of taxing the shares of national banking associations located within the state. There are only two restrictions placed by Congress on the power of the legislature of a
The law of the territory of Arizona with reference to the taxes involved in this case was approved April 13, 1893, (Laws 1893, Act No. 85,) and the first section thereof is as follows, viz.: “That hereafter all the shares of stock of every bank or
On the trial evidence was admitted establishing the fact that a certain building and loan association, duly organized and incorporated, was doing business in Tucson, Arizona, having a large capital, divided and represented by a large number of shares; and the nature of the business conducted by said corporation was to loan to its shareholders the money of said corporation. It was shown in evidence that said corporation was not assessed, excepting upon a small portion of real estate owned by it, and on some inconsiderable portion of per
On the trial proof was made that the assessor of Pima County, by letter, demanded of Tenney a list of his shares in the banking association; that receiving no reply from Tenney, said assessor assessed Tenney’s personal property, and with it personal property valued at ten thousand dollars. It was conceded that said ten thousand dollars was one hundred shares of said Consolidated National Bank of Arizona, each share of the par value of one hundred dollars. Said list of the property of Tenney was returned by the assessor, and was passed upon by the board of supervisors of said county, as a board of equalization. Tenney did not appear before said board in person or otherwise to urge objections to or corrections of said assessment. That Tenney was the owner of said one hundred shares of said banking association, and that they were of the value, in the aggregate, of ten thousand dollars at the time of the assessment was not disputed on’ the trial, and is not controverted, now. The course pursued by the said assessor • in assessing said shares was substantially the same as prescribed by law for the assessment of other per
But it is contended by appellants that by the act of April 13, 1893, a special mode is provided for the assessment of the stock of banking associations. Section 3 of said act is cited in support of said contention. It is as follows: “Upon the demand of the assessor, the president, cashier, or other officer in charge of an incorporated bank association, person or persons, shall make out and deliver to such assessor ... a statement-showing the name and residence of each stockholder therein, . . . and the amount of stock held by him. ... If any such person, officer, or agent shall refuse to make out and deliver such statement, ... he shall be personally liable to the county for the whole amount of taxes which should be paid upon such stock; and it shall be the duty of said assessor or tax-collector, as the case may be, to collect the same as other county and territorial taxes are collected.” The above section, excepting as to the penalty to be imposed upon the officers and persons therein designated, is practically a rescript of paragraph 2641 of the Revised Statutes of Arizona. The evident purpose in view was to provide a mode of ascertaining the ownership of such property, to the end that it might be assessed. In section 2 of said act of April 13, 1893, there is the following: “Bank stock shall be entered in the name of the holders of the several shares thereof respectively.” By said section the obligation is imposed upon the assessor to do what is therein required. If said section 3 was intended to be the only mode to be pursued in making the assessment of the stock in banking associations, on refusal of the officers and persons therein mentioned to furnish a list, etc., thereof, no tax could be collected, for there would be no way to fix the amount of taxes due; hence the officers therein mentioned could not collect any penalty, for there would be no penalty fixed, and no way Of
On the trial an agreed statement of facts was made, to the effect that the tax-collector of Pima County was about to seize and sell the said one hundred shares of the stock of said banking association, and that he would do so if not restrained. We have already discovered from the evidence that said shares were not specifically described; that is, that they were not described so that they could be known from other shares of said association. If we should construe this agreement literally, we would be compelled to hold that said injunction would have to be sustained; but we think said agreed statement of facts, taken in connection- with all other facts in the case, must be construed to mean that the collector would proceed to collect, in the way pointed out by law, the amount of taxes due on said shares, as fixed by said assessment, as so much due from the owner thereof, in the way said amount would be collected if it was due on other ordinary personal property, and not that said officer was about to seize the specific shares. The provisions of said act of April 13, 1893, make the shares of all banking associations taxable in the same way. It is a valid act. There being no evidence that the shares of stock of any similar association were exempt from taxation (Bank v. Ayers, 160 U. S. 660, 16 Sup. Ct. Rep. 412), the judgment of the district court must be affirmed, notwithstanding the contention of counsel for appellants that part of the capital of said banking association was invested in United States and other bonds not taxable (Van Allen v. Assessor, 3 Wall. 573; Bradley v. People, 4 Wall. 459; People v. New York County-Commissioners of Taxes, 4 Wall. 244; Palmer v. McMahon, 133 U. S. 660, 10 Sup. Ct. Rep. 324), and notwithstanding the fact that the taxation of corporations other than banks is made under a different system (Mercantile Bank v. New York, 121 U. S. 138, 7 Sup. Ct. Rep. 826); and it is so ordered.
Concurrence Opinion
I concur in the affirmance of the foregoing action. I think, however, that the assessor should have stated in his assessment that the personal property assessed was “100 shares of the capital stock in the Consolidated National Bank of Tucson, Arizona, value one hundred dollars per share, total value ten thousand dollars, ’ ’ if this was the correct valuation. But there being no question in the court below that this was the property, and that Tenney was the owner of the same, and the taxes thereon were neither paid nor tendered, the action of the court in dissolving the injunction was proper. No person has a right to an injunction to restrain the collection of taxes upon any kind of property not expressly exempt from taxation without first having paid the proper amount due as taxes on the same, or paying into the court the amount of such taxes. Shares in a national bank are not assessable to the national bank, for the reason that they are not owned by the bank, and would interfere with the operations of a national’ agency. The shares, however, are owned by individuals, and the assessment on the same should be made to the individual owners of such shares.
Dissenting Opinion
I dissent. The territorial law is invalid,
because it suffers the taxation of the shares of a national bank, and permits the taxation of the capital stock only of other banks or banking corporations. There is a manifest distinction between the shares of a corporation and its capital stock for taxation purposes, and this law is therefore, in my opinion, discriminating and unjust. Van Allen v. Assessors, 3 Wall. 573-581; Bradley v. People, 4 Wall. 459. Furthermore, paragraph 2633 of the Revised Statutes of this territory exempts the shares of all corporations from taxation, while the present statute under consideration suffers the taxation of the shares of some banking corporations only. The revenue law is therefore not uniform and equal, but is discriminating and unequal.