153 N.Y. 331 | NY | 1897
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *333
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *334 The first question involved in this controversy relates to the taxes assessed and collected of the plaintiff for *337 the year 1886. On the 15th of June of that year the legislature passed an act which provides: "The lands and real estate of such insurance companies shall continue to be assessed and taxed where situated for state, city, town, county, village, school or other local purposes; but the personal property, franchise and business of all insurance companies incorporated under the laws of this state, or any other state or country and doing business in this state, and the shares of stock of said companies shall hereafter be exempt from all assessment or taxation except as in this act prescribed; provided that this section shall not affect the fire department tax of two per cent now required to be paid." (Laws of 1886, chap. 679, sec. 4.) The solution of this question depends upon the construction of this provision of the statute and how far it affected the tax for that year. This act expressly provided that insurance companies incorporated under the laws of any other state doing business in this state should thereafter be exempt from assessment or taxation, except in certain cases which have no application here. It is contended by the plaintiff that this statute exempted it from taxation and was applicable to the taxes for the year 1886, although the assessment for that year had been completed prior to its passage. Its claim is, that as it was to take effect immediately, and as the tax had not been actually perfected by extending it upon the assessment roll, it was exempted from the taxes of that year.
With that contention we cannot agree. Indeed the question can hardly be regarded as an open one in this court, as similar questions have been several times decided by us adversely to the plaintiff's claim in that respect. (Matter of the American FineArts Society,
In the case of The American Bible Society although it was held that the act there under consideration relieved the property of the relator from taxation for that year, because it was passed previous to the first day of May, and was to take effect immediately, still the court recognized the correctness of the principle established by the preceding cases. (See, also,Sisters of St. Francis v. Mayor, 51 Hun, 355; affirmed,
It is urged by the plaintiff that the word "taxation" relates to the imposition of the tax itself and not to the assessment, and as the tax had not been actually levied when this statute was passed, it exempted its property from taxation for the year 1886. We think there is no distinction between this case and Matter ofthe American Fine Arts Society (supra), as in that case like this the exemption was from taxation. As there was no provision in the act under consideration in this case giving it a retroactive effect, it did not affect the assessment and tax for the year 1886. It follows that the appeal of the plaintiff cannot be sustained.
This brings us to the consideration of the validity of the taxes imposed for the years 1887 and 1888. Under the statute to which we have already adverted, the personal property of an insurance corporation of another state doing business in this state is exempt from assessment and taxation, *339
except as therein provided. As there was nothing in the act providing for a tax such as was imposed in this case, there was no law authorizing its assessment and levy. Such a tax was forbidden by that statute, and consequently was without authority and contrary to law. (People ex rel. Commonwealth Ins. Co. v.Coleman,
The tax being void, the amount paid the city may be recovered in an action for money had and received. It seems to be settled in this state that, where an assessment is valid on its face, and in fact void because the assessors had no jurisdiction to make it, an action may be maintained to recover back money involuntarily paid in satisfaction thereof without first having the assessment set aside or vacated, and a demand for *340
the return of the money is unnecessary before the commencement of an action to recover it. (Bruecher v. Village of PortChester,
We are also of the opinion that the payment of the taxes for 1887 and 1888, under the circumstances disclosed by the evidence, was not voluntary, and hence the amount thereof may be recovered in this action. At the time these payments were made, section 314 of chapter 409 of the Laws of 1882 was in force. That section provides that a tax upon the shares of a bank organized under the laws of the state, or of the United States, shall be and remain a lien thereon from the day when the property was assessed, and, if transferred after that day, the transfer shall be subject to such lien. As this tax became and remained a lien upon the plaintiff's bank stock, even after a transfer, it deprived it of an essential element of its ownership and of its right to transfer it. That being the effect of the imposition of the tax, we think it amounted to such an impounding or duress of the plaintiff's property as to render the payment so far involuntary as to authorize an action for the recovery of the money thus wrongfully received by the defendant. The plaintiff could only establish its right to a full enjoyment of its property by proof of the facts which entitled it to an exemption under the statute of 1886, in an action or proceeding instituted for that purpose, or by payment of the tax. The defendant having, by its unauthorized act, placed the plaintiff in that position, it cannot relieve itself from a liability to refund the amount it thus wrongfully received by asserting that the payment was a voluntary one, or by claiming that the plaintiff might have pursued some other remedy to relieve its property from the lien thus established. The payment was necessary to relieve the plaintiff's property from the lien to which it was made subject by the wrongful acts of the defendant's officers, unless it instituted a proceeding to establish the invalidity of the tax The plaintiff, to enforce its rights, elected to pay the tax and thus relieve its property from such lien, and then to institute an action to recover the amount it was obliged to pay, instead *341 of commencing a proceeding to set aside the tax. We think the defendant is not in a position to complain because the plaintiff elected to pursue the former instead of the latter remedy, and that the payment cannot be held to be so far voluntary as to deprive the plaintiff of its right to recover the amount of taxes thus wrongfully levied and received by the defendant.
Moreover, we are of the opinion that, independent of that question, there was no such voluntary payment by the plaintiff, with a knowledge of all the facts, as would bar a recovery of the moneys thus paid. The payments were made by the banks without express authority from the plaintiff. Therefore, although the banks may have had some knowledge of the facts, the plaintiff was not chargeable with that knowledge, unless the payments were made in pursuance of its express authority or consent after it had acquired full knowledge of all the facts, including the invalidity of the tax. While the bank may have been justified in paying a valid tax upon the plaintiff's property, it had no authority to pay one which it knew to be invalid, unless by the express direction of plaintiff, with full knowledge of its invalidity. Hence it is obvious that the payments for 1887 and 1888 were so far involuntary as to justify a recovery in this action. (Carver v. Creque,
The defendant contends that the bank shares owned by the plaintiff did not fall within the provisions of the act of 1886, because the state had a separate and independent system of taxation of stockholders in state and national banks, and there was nothing in the act of 1886 indicating an intent to abrogate the provisions of that system. The authority to tax shares of national banks was conferred by section 5219 of the Revised Statutes of the United States, which provided that the legislature of each state might determine and direct the manner and place of taxing all shares of national banking associations located within the state, subject to two restrictions, first, that the tax should not be at a greater rate than is assessed upon other moneyed capital *342 in the hands of individuals, and, second, that the shares of a national bank owned by non-residents should be taxed in the town or city where the bank is located. To carry that provision into effect chapter 409 of the Laws of 1882 was passed. Section 312 of that act provided that the stockholders of every bank organized under the authority of the state or of the United States, should be assessed and taxed on the value of every share of stock therein, and that such stock should be included in the valuation of the personal property of such stockholders in the assessment of taxes at the place where the banking association was located. Thus it is seen that, by virtue of the very statute to which the defendant refers, the shares of the stockholders of such banks are to be included in and form a part of the personal property for which the stockholders are to be assessed, while the statute of 1886 expressly provided that the personal property, franchises and business of insurance companies incorporated under the laws of another state and doing business in this should thereafter be exempt. It is difficult to see how it can be held that bank shares which are, by the statute of 1882, expressly made a part of the personal property of the stockholder, can be excluded from the exemption provided by the statute of 1886, which expressly exempts all the personal property, franchises and business of the company. That, independent of that statute, shares of stock in a bank are personal property there can be no doubt. Moreover, the statute expressly recognizes them as such. That under these circumstances they should be regarded as within the provisions of the statute of 1886 is obvious. That statute was passed subsequent to the statute of 1882, and if there had been any intention to exclude bank shares from the operation of that act, presumably it would have been expressed in the statute. The statutes of 1882 and 1886 must be read and construed together, and if there is any inconsistency in their provisions the latter must be regarded as modifying the former. We think plaintiff's shares of stock in the various banks of this state formed a portion of its personal property, and *343 were exempted from taxation by the statute of 1886. Under the circumstances of this case we are clearly of the opinion that the plaintiff was not liable to taxation upon the stocks of New York banks owned by it in the years 1887 and 1888, and that the recovery herein should be sustained.
Therefore, the judgment of the learned Appellate Division should be affirmed, but as both parties have appealed, without costs to either.
All concur.
Judgment affirmed.