95 P. 23 | Idaho | 1908
This action was brought by the Weiser National Bank, a corporation, as plaintiff, against Woodson 'Jeffreys, treasurer of Washington county, and Washington county, as defendants, to recover a tax of $636 paid under protest. The case was submitted to the trial court on an agreed statement of facts, and judgment was entered against the plaintiff, who is appellant here, dismissing the action.
The facts stipulated were in effect as follows: That the Weiser National Bank is a banking corporation organized under the laws of the United States of America relating to national banks; that its principal office and place of business is at the city of Weiser in Washington county, and that it began doing business on March 15, 1906; that said bank was organized with a paid-up capital of $50,000, consisting of 500 shares of capital stock of the par value of $100 each; that a list of the stockholders and owners of the shares of capital stock of said corporation is attached to the stipulated facts as an “exhibit”; that said list contains a true statement of the names of the stockholders and their residences at the time of the organization of said bank, as well as at the date of the attempted assessment of the capital stock of said bank by the county assessor and tax collector of said Washington county for the year 1906; that all of the money with which said shares of stock were purchased, except the sum of $4,000, with which $4,000 were purchased two shares of Rebecca K. Troy of Cincinnati, Ohio; two shares of Samuel R. Meyer of Cincinnati, Ohio; six shares of Sig Wise of Cincinnati, Ohio, and thirty shares of M. McGregor of Portland, Oregon, was in the state of Idaho on the second Monday of
The two principal questions presented for decision are: (1) Was the assessment and levy of the $636 taxes on the-.
Was the assessment and levy absolutely void or only irregular? If the state or county has no authority to assess the capital stock of a national bank, the assessment then is void. The states would be wholly without power to levy any tax, either direct or indirect, upon national banks, their property, assets or franchises, were it not for the permissive legislation of Congress. (See notes to sec. 5219, Revised Statutes of the United States, and authorities there cited; 5 Fed. Stat. Ann., p. 157 [U. S. Comp. Stat. 1901, p. 3502].) That section is 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 ail 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 nonresidents 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 its value, as other real property is taxed.”
In Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 19 Sup. Ct. 537, 43 L. ed. 850, it is held that the provisions of said section of the Revised Statutes of the United States are the measure of the power of a state to tax national banks, their property or their franchises. The court held:
*666 ‘ ‘ This section, then, of the Revised Statutes is the measure of the power of a state to tax national banks, their property, or their franchises. By its unambiguous provisions the power is confined to a taxation of the shares of stock in the names of the shareholders and to an assessment of the real estate of the bank. Any tax, therefore, which is in excess of, and not in conformity to, these requirements, is void.”
It will be observed from the provisions of that section that all shares of stock of the stockholders may be included in the valuation of the personal property of the owner or holder of such shares in assessing taxes imposed by the authority of the state in which the bank is located and under the provisions of said section, the state or county may tax the real estate belonging to such bank.
It will be observed from the stipulated facts that the “capital stock” was assessed and not the shares of capital stock. The term, “capital stock,” does not mean “shares of capital stock,” but means the actual money or property paid in and possessed by the corporation. (State Bank of Virginia v. City of Richmond, 79 Va. 113.) Neither under said statute of the United States nor under the revenue law of the state of Idaho is there any authority to tax the capital stock of national banks. The assessor is given no authority or jurisdiction to assess the capital stock of the appellant bank. He is given authority to assess the real estate belonging to the bank and to assess the shares of stock to the owners thereof. The taxes so assessed must be paid by the bank. Sec. 43 of the revenue law, approved March 22, 1901 (Sess. Laws 1901, p. 233), is as follows:
“The stockholders of every banking association located in this state, and organized under the laws of the United States or of this state, must be assessed and taxed on the value of their shares of stock therein in the county, city, town, village and independent school district, authorized by law to collect revenue as in this act provided, where such bank is located, whether the stockholders there reside or not; such shares must be listed and assessed with regard to the value of such shares by reason of any net individual profits or surplus of such cor*667 poration, and with regard to the ownership thereof, subject, however, to all deductions allowed in the assessment of other moneyed capital, and subject to the restriction that taxation of such shares must not be at a greater rate than is assessed on any other moneyed capital in the hands of individual citizens of the state in the place where such bank is located. Every such banking association must furnish to the assessor a full and correct list of the names and residence of its stockholders and the number of shares held by each. The taxes upon such shares must be assessed against the holder of the same in the list of personal property and must be paid by the bank. The real estate of such banking association is subject to state, county, municipal and district taxation as other real estate. ’ ’
It will be observed from the provisions of said section that the stockholders of a national bank may be assessed and taxed on the value of their shares of stock, but there is no provision in said section authorizing the assessment of the “capital stock” of the bank, and the provisions of said see. 48 are in conformity with the provision of said sec. 5219, U. S. Rev. Stat. We conclude, therefore, that the assessor had no jurisdiction or authority to assess the capital stock of said bank to the bank, or at all.
The next question presented for consideration is as to whether the appellant is estopped, under the facts of this case, from recovering from the respondents the amount of said tax, and whether it is estopped therefrom by reason of its failure to make application to the board of equalization of Washington county for relief from said void assessment.
It is contended by counsel for respondents that the exclusive remedy for the appellant to be relieved of this tax was before the county board of equalization, and he cites, among other authorities, 25 Am. & Eng. Eney. of Eaw, 1st ed., p. 242, where it is said:
“When provisions are made for an application to the board of equalization or review for the correction of errors in an assessment, such remedy is exclusive and the taxpayer, failing to avail himself thereof within the time prescribed, cannot*668 prevent the collection of a tax for any canse for which he might have had an abatement.”
"We will now refer to the provisions of onr constitution and the statute law prescribing the powers and duties of the board of equalization. Under the provisions of sec. 12, art. 7, of the constitution of this state, it is provided, among other things, that “the board of county commissioners for the several counties of the state, shall constitute boards of equalization for their respective counties, whose duty it shall be to equalize the valuation of the taxable property in the county under such rules and regulations as may be prescribed by law.” It will be observed from those provisions that the boards of equalization have authority “to equalize the valuation of the taxable property in the county.” Secs. 54 and 55 of the revenue act, approved March 12, 1901 (Sess. Laws 1901, p. 233), provide the method and manner of equalizing the valuation of such property. Those provisions of the constitution and the statute apply to “taxable property in the county.” Property over which the taxing authority has no jurisdiction does not come within the jurisdiction of the board of equalization, under the provisions of said statute, and hence the bank was not required to make application to said board for relief, and is not estopped from recovering the amount of the tax paid under protest. As the capital stock of the appellant bank was not taxable property within the county, it does not come within the provisions of said equalization law. By the provisions of said revenue act, the assessor was commanded to assess the shares of stock of such banks as the appellant to the individual owners thereof, and was impliedly prohibited from assessing the capital stock of the bank to the bank, or at all. While it is true that the cashier of the bank swore to the tax list in which the capital stock of said bank was attempted to be assessed, he was without any authority or right to do so, and could not bind the bank by his illegal act. It is not claimed that there was any fraud in this matter, but that it was ignorance of the law as to the rights of the bank in the premises. It is not claimed that there were any false representations upon which the assessor relied in making said assessment,
"The general principle is stated in the case of the City of Charlestown v. County Commrs. of Middlesex, 109 Mass. 270; ‘One who by mistake of his rights returns to the assessor as liable for taxation a list of property which by law is exempt, is not thereby estopped to claim an abatement of the tax.’ ” And in the same case the court said: “The taxpayer is not estopped by his return when the assessment is void. ’ ’
The case of Inland Lumber & Timber Co. v. Thompson, 11 Ida. 508, 114 Am. St. Rep. 274, 83 Pac. 933, is not in point in this case. In that case the property involved was property subject to taxation, and the appellant returned it as its property, and it was held'to be estopped from denying its ownership ; while in the case at bar, the capital stock of said bank was not subject to taxation, and the list furnished by the cashier on its face shows that it was not subject to taxation. We therefore conclude that the appellant is not estopped from recovering back said taxes.
The judgment of the trial court must be reversed and it is so ordered, and the cause remanded for further proceedings in accordance with the views herein expressed. Costs of this appeal are awarded to the appellant.