Hamacker v. Commercial Bank

95 Wis. 359 | Wis. | 1897

Winslow, J.

1. The city taxes (if enforceable) were a preferred claim against the estate, but by statute they should be paid only pursuant to order of the court contained in tho final judgment in the action. R. S. secs. 3225-3245. Though the payment was unauthorized when made, still if the fact appeared that the claim was a valid one against the estate, and one that must necessarily be allowed and paid, the court wall not disallow the payment because made without authority previously obtained. Brown v. Hazlehurst, 54 Md. 26; Thompson v. Phenix Ins. Co. 136 U. S. 287; High, Receivers (3d ed.), § 798. The question as to the allowance of this item, therefore, becomes simply an inquiry as to whether it appeared that the charge was one that must at some time •necessarily be paid out of the estate. It is not claimed but that there will be ample funds to pay all preferred claims, but it is said that the tax was illegal and void, and could not be enforced against the estate, and hence that the receiver should not have paid it. As to the legality of the tax, the facts were that the bank had no personal property subject to taxation. Its capital stock was $60,000; it had no surplus or real estate. The stockholders should have been taxed on the value of their shares. Laws of 1866, ch. 102; S. & B. Ann. Stats, p. 1218; Second Ward Sav. Bank v. Milwaukee, 94 Wis. 587. But this was not done. For years, in the city of Stevens Point, the method of bank taxation has been as follows: The whole amount of capital stock and surplus, if any, were added together. From this sum were deducted the United States bonds and the bank building, and the amount remaining was divided by three, and the quotient was entered on the assessment roll as the taxable property of the bank. In the present instance the bank had no •surplus, bonds, or real estate. The cashier made a property statement to the assessor in which he listed for taxation personal property not exempt, $20,000. The assessor put on his roll two items, as follows:

Talue of bank stock. $20,000.

Total value of all personal property. $20,000.

Upon the tax roll the bank was assessed directly as the owner of personal property valued at $20,000, and the various items of taxes were carried out. Although this was an ■improper mode of taxation, we do not perceive how the bank could escape from paying the tax which was based upon a personal property return made by its own cashier. In such cases the principle of estoppel has been frequently applied, and certainly with justice. 25 Am. & Eng. Ency. of Law, 209; Ives v. North Canaan, 33 Conn. 402; Republic L. Ins. Co. v. Pollak, 75 Ill. 293; People v. S. & C. R. Co. 49 Cal. 414. If the bank could not question or resist the tax, no ground is perceived upon which the receiver could resist it. There is no evidence nor finding that the bank was insolvent in 1894, when the statement was made and the tax levied, nor is there anything to show that the return of the cashier was not made in entire good faith. Certainly, where there are no elements of fraud upon creditors in the transaction, the receiver stands in no better plight than the corporation itself. McLaren v. First Nat. Bank, 76 Wis. 259; High, Receivers (3d ed.), §§ 318-320.

2. We think the court was right in allowing the charge for obtaining the signature of the American Surety Company as surety on the bond. The execution of the bond by such a company as surety is authorized by ch. 196, Laws of 1S93, and a reasonable charge therefor, not exceeding two per cent, per annum, is expressly authorized by ch. 219, Laws of 1895. We have nothing to do with the policy of the law. It was certainly competent for the legislature to make such a law, and we are to administer it in accordance with its plain intent. In this case the court required a bond of $80,000, with sufficient sureties to be approved by the county judge of Portage county. The bond was executed by Malicie as principal, and by the surety company as surety, and approved by the designated officer. The amount allowed is apparently within the percentage allowed by the statute. Although the court does not in its order say that thé sum allowed is a reasonable one, the very fact of the allowance of the sum is, in effect, a declaration that it is reasonable. It follows from these views that the part of the order appealed from disallowing the item of $1,237.10 paid for taxes must be reversed, and that part allowing the item of $603.38 paid the surety company must be affirmed, and the cause remanded for further proceedings according to law. The costs are to be taxed and paid out of the estate.

By the Court.— It is so ordered.