First Nat. Bank of Albuquerque v. Albright
208 U.S. 548
SCOTUS
1908
Check Treatment
Mk. Justice Holmes

delivered the opinion of the court.

This is a complaint ©r bill agáinst the Assessor, -the Treasurer and ex officio Collector, and the District 'Attorney of the County of Bernalillo, New Mexico, to enjoin the.reassessment of-a tax on stock аnd real estate for the year 1903 upon the plaintiff bank, which the plaintiff is informed and beliеvés the defendants will attempt. The bill alleges that the plaintiff gave the Assessor a list in which capital stock, surplus and real estate were lumped in a single item with a single valuation оf $90,000. Thereupon the Assessor made a different valuation, lumping the capital stock аnd valuing it at sixty per cent of its par value, and giving separate figures for the surplus and the several parcels of real estate*, the total being $150,542. This was affirmed by the Territorial Bоard' ‍​​‌‌​‌‌​‌​​‌​​‌‌​​​​‌​​​​​​‌​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌‍Of Equalization on appeal. Afterwards the plaintiff paid the amount admitted by it to be due, and was-sued for the residue; but the suit was dismissed, the District Attorney giving out that a new assessment would be made. It is alleged that the Assessor, in 1903, announced as his method of valuation that all prоperty except bank property and bank shares would be assessed at one-third of its real value, but that he would assess banks at sixty per cent of the capital stock and surplus in addition to their real estate; that he did as he announced, and also assessеd the real estate without deducting the value “from the valuation of other propеrty assessed against said banks.” Beside the prayer for an in *552 junction there is another that the Treasurer and ex officio Collector be ordered to cancel the above mentioned assessment upon his books. There was a demurrer, which was overruled below but sustained by the Supreme Court of the Territory with directions to dismiss the complaint.

The complaint admits that the plaintiff’s return was not in accordance with the law, and the Supreme Court of the Territory says that both that and the assessment were bad, аnd that a reassessment is authorized by local law. We see no reason to reverse its decision upon that point. If a reassessment is made, that now on the Treasurer’s, books will be disposed of and will be no cloud upon the plaintiff’s title, so that the whole question is whether a reassessment shall be made. The plaintiff’s objection is not the technical one ‍​​‌‌​‌‌​‌​​‌​​‌‌​​​​‌​​​​​​‌​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌‍that' no reassessment is authorized by statute, but the substantial apprehension that the shares will be taxed “at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens,” contrary to the words of Rev. Stat. § 5219, and that the value of rеal estate separately assessed and taxed will not be deducted from the valuation of shares, as it is thought to be implied by that section and required by the territorial law of February 20, 1891, c. 40; Compiled Laws, 1897, § 259, that it should be.

We assume that such an assessment of shares as is aрprehended would be invalid under Rev. Stat. § 5219. First National Bank of Wellington v. Chapman, 173 U. S. 205, 219, 220. We assume that it would be invalid none the less if disguised as а tax' on sixty per cent of the par value, if other moneyed capital was uniformly and intentionally assessed atone-third of its actual value-and ‍​​‌‌​‌‌​‌​​‌​​‌‌​​​​‌​​​​​​‌​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌‍if sixty per cent of the par value of the bank shares was more than one-third of their actual value. . Accidentаl inequality .is one thing, intentional and systematic discrimination another. See further Raymond v. Chicago Traction Co., 207 U. S. 20. We agreе with the plaintiff that the only taxes contemplated by § 5219 are taxes on the shares of stоck and- t^xes on the real estate. Owensboro Nat. *553 Bank v. Owensboro, 173 U. S. 664, 669. Hence, while the law does not consider the nаture of the bank’s ‍​​‌‌​‌‌​‌​​‌​​‌‌​​​​‌​​​​​​‌​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌‍investments not taxed in fixing the value of its stock, Palmer v. McMahon, 133 U. S. 660, it may be argued consisténtly with the decisions that real estate taxed to the bank, and land out of the Territory, which could not bе taxed by it at all. Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, are meant to be deducted by Rev. Stat. § 5219, and are required.to be by thé territoriаl law. But we agree ‍​​‌‌​‌‌​‌​​‌​​‌‌​​​​‌​​​​​​‌​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌‍with the Supreme Court of the Territory that the time for deciding these and other questions has not come.

The acceptance of what was admitted to bе due created no estoppel to demand more. There are no such prеcise averments in the complaint as would warrant our assuming that no as: sessment could be made for a further amount, still less the t. none in any form could be made, when there is no valid оne upon the books. We cannot tell, and much more positive averments of intent than .those before us' would not warrant a court in prejudging, what the assessing officer will do. It is not fоr a court to stop an officer of this kind from performing his statutory duty for fear he should perform it wrongly. The earliest moment for equity to interfere is when an assessment has been made. Probably it will be made with caution, after this case.

Judgment affirmed.