8 S.D. 160 | S.D. | 1895
Appellant asks for a rehearing of this case, the opinion in which is reported in 64 N. W. 1122, 7 S D. 527, on the ground that the decision made is against the weight of authority. The question upon which the case turns is whether, under the laws of this state providing for the assessment of the shares of stock of a banking corporation against the individual stockholders owning the same, and upon the facts in this case, an action can be maintained by the bank itself to restrain the collection of taxes thus assessed against its individual stockholders, on the ground that such assessment was illegally made. The facts relied upon to show such illegality are sufficiently stated in the former opinion. We held that the bank, as an independent corporate person, had no interest in the question to be litigated; it was neither required nor authorized to pay the taxes of its stockholders; that it sustained no such relation to the tax, its legality or illegality, as under the general provisions of our law, requiring actions to be brought in the name of the real party in interest, would entitle it to take the matter out of the hands of the individual tax debtors, and litigate the controversy in its own name. ^ The ground upon which the right of the bank itself to maintain the action is claimed is the avoidance of a multiplicity of suits. The first case cited by appellants as teaching a doctrine contrary to our opinion is Cummins v. Bank, 101 U. S. 153, noticed in our opinion. This case cited and followed First Natl. Bank v. Kentucky, 9 Wall. 353—a case coming from Kentucky. The statute of that state expressly required the cashier of the bank, on the first day of July of each year, to pay into the treasury the amount of the taxes so assessed and due, under a severe penalty for nonpayment. The Cummings Case was from Ohio. While the statute of that state did not require the bank to pay such taxes it authorized it to do so. The opinion says: “If it pays it may be subjected to a separate suit by each shareholder. If it refuses, it must either withhold dividends, and subject itself to litigation by doing so, or refuse to obey the laws and subject itself to suit by
The avoidance of a multiplicity of suits is a reason for interference by a court of equity, but it will never so interfere in behalf of a party who is obviously in no danger of being sued. It is not alleged that any stockholder — much less, any number of them — has sued, or is about to, or has threatened to sue the bank, on account of anything it has or may lawfully do in the premises; and it is not easy to see what it can do to expose it