OPINION OP THE COURT.
MILLS, C. J.
— This action was brought on the equity side of the court, and as a result of the decree entered by the trial court, the assessor and collector of Bernalillo county was restrained from re-assessing or making additional assessments on any of the property of the First National Bank, or anv of its shares of stock for the year 1903.
An examination of the complaint shows that both the return made by the bank and the assessment made by the Assessor Albright, are incorrect and do not comply with the requirements of the statutes of this Territory; the return made by the bank returns the shares of stock in solido, and not to the several owners, as required by Sec. 257, Compiled Laws of 1897; nor is the actual cash value of said stock set out, as is also required by said See. 257; each parcel of real estate is not listed and valued separately, but the whole, including the stock and surplus of the bank, is valued in bulk. The assessment sought to be made by the Assessor Albright, also assesses the stock in solido, and does not attempt to set any actual cash value on such stock.
It appears from the complaint that the capital stock of the bank, at the time Albright attempted to make his assessment was $200,000, and its surplus in March, 1903. ivas $24,634. The total of the return made by the bank, and which included capital, surplus and real estate was $90,000, while the assessment as made by the assessor, acting under the directions of the board of count)' commissioners was $150,542.00.
The principal points in this case are that assessments made in Bernalillo county are not uniform and that property other than banks is only assessed at one-third of its real value, and that thus a discrimination is made against banks, which are assessed according to a ruling of the Territorial Board of Equalization at the rate of 60% of the par value of its capital stock and surplus, and that if shareholders of banks are taxed at the- rate of 60% of the par value of their stock and surplus, that there must be deducted from the amount so fbund due, the value of the real estate owned by the bank.
1 That the Territorial Board of Equalization has the power to fix the valuation of 60% as that at, which the capital stock and surplus of banks shall be assessed, has been expressly decided, by this court in the case of the Territory of New Mexico, v. First National Bank of Albuquerque, 10 N. M. 283, and wo see no reason to make any change in or recede from the position taken by this court in deciding that case. It may be possible' that in some, and perhaps many cases in the Territory, real estate is assessed at a lower rate than 60% of its actual value, and we also know from experience and observation that in many cases personal property which is represented by cash, stocks, bonds, and other forms of indebtedness, is not listed by their owners and escapes taxation altogether, but this would be no reason to say that, because this class of property was not taxed .that bank stocks and real estate should also be exempted from taxation. Assessors, like other human beings,, are liable to err. The mere fact that one class of property is assessed at a higher percentage of its value than other classes does not vitiate an assessment. As has been well said, “to make the valuation»of one class of property depend upon the extent of the valuation by assessors of the duty required of them by law in respect to another description of taxable property, would be a recognition and sanction of such violation of duty, which we would not impute tc the legislature unless declared in the most unequivocal terms.'' People v. Supervisors, 60 N. Y. 385.
Congress has given states and territories the authority to tax national hanks. The permission is given in See. 5219, of the revised statutes of the United States, which reads 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 bj the 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 all the shares of national banking associations located within the state, subject to two restrictions, that the taxation shall not be at _ a greater rate than is assessed upon other moneyed capital i i the hands of individual citizens of such state, and that the shares of any national banking association owned by non-residents of any state shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall he construed to exempt the real property of associaiions from either state, county or municipal taxes, to the same extent, according to its value, as other real property is taxed.”
Although the word “State” is used in this' act, it is held that the same power to tax national banks exists in the territories as in the states, Talbott v. Silver Bow, County, 139 U. S. 446.
The taxing power cannot go outside of this act of Congress and tax national hanking associations otherwise than as therein provided.
There is nothing in the complaint to show that the proposed action of the defendants conflicts with this act of Congress. The complaint does not allege that the assessment would be at a greater percentage than is assessed upon moneyed capital in the territory. Such capital, no matter in what invested, is treated uniformly and equally by the Territorial Board of Equalization. There is no restriction in the act of Congress saying that the capital of a bank shall be assessed at the same percentage of value as real estate, as said by the Supreme Court of the United States, in speaking of Sec. 5219, Revised Statutes of the United States: "The restriction therein imposed is equality of assessment, with other moneyed capital; not with other property generally, but that property which passes under the description of moneyed capital. The significance of this expression has been defined by this court in the case of Mercantile Bank v. New York, 121 U. S., cited in Palmer v. McMahon, 133 U. S. 660, 667 as follows: 2. The term "Moneyed capital,” as used in Revised Statutes Sec. 5219, respecting state taxation of shares of National Banks, embraces capital employed in national banks, and capital employed by individuals when the object of their business is the making of profit by the use of their moneyed capital as money, as in banking, as that business is defined in the opinion of the court.” Talbott v. Silver Bow County, 132 U. S. 338.
Let us Suppose that the bank in question in order to protect itself had to take real estate outside of the Territory, — perhaps in Arizona. If such was the case, there can be no doubt but that the authorities of Arizona would tax such real estate, and when the assessor of the county in this territory where the bank is situated, came to assess the stock of the shareholders of such bank could the bank reply, “Our shareholders owe you nothing, we have deducted from the assessed value of their stock the value of the real estate we own in Arizona, and there is nothing coming to you?” Assuredly not. It would be absurd to make such a contention.
2 A bank is different from the stock held by its shareholders.
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OPINION OP THE COURT.
MILLS, C. J.
— This action was brought on the equity side of the court, and as a result of the decree entered by the trial court, the assessor and collector of Bernalillo county was restrained from re-assessing or making additional assessments on any of the property of the First National Bank, or anv of its shares of stock for the year 1903.
An examination of the complaint shows that both the return made by the bank and the assessment made by the Assessor Albright, are incorrect and do not comply with the requirements of the statutes of this Territory; the return made by the bank returns the shares of stock in solido, and not to the several owners, as required by Sec. 257, Compiled Laws of 1897; nor is the actual cash value of said stock set out, as is also required by said See. 257; each parcel of real estate is not listed and valued separately, but the whole, including the stock and surplus of the bank, is valued in bulk. The assessment sought to be made by the Assessor Albright, also assesses the stock in solido, and does not attempt to set any actual cash value on such stock.
It appears from the complaint that the capital stock of the bank, at the time Albright attempted to make his assessment was $200,000, and its surplus in March, 1903. ivas $24,634. The total of the return made by the bank, and which included capital, surplus and real estate was $90,000, while the assessment as made by the assessor, acting under the directions of the board of count)' commissioners was $150,542.00.
The principal points in this case are that assessments made in Bernalillo county are not uniform and that property other than banks is only assessed at one-third of its real value, and that thus a discrimination is made against banks, which are assessed according to a ruling of the Territorial Board of Equalization at the rate of 60% of the par value of its capital stock and surplus, and that if shareholders of banks are taxed at the- rate of 60% of the par value of their stock and surplus, that there must be deducted from the amount so fbund due, the value of the real estate owned by the bank.
1 That the Territorial Board of Equalization has the power to fix the valuation of 60% as that at, which the capital stock and surplus of banks shall be assessed, has been expressly decided, by this court in the case of the Territory of New Mexico, v. First National Bank of Albuquerque, 10 N. M. 283, and wo see no reason to make any change in or recede from the position taken by this court in deciding that case. It may be possible' that in some, and perhaps many cases in the Territory, real estate is assessed at a lower rate than 60% of its actual value, and we also know from experience and observation that in many cases personal property which is represented by cash, stocks, bonds, and other forms of indebtedness, is not listed by their owners and escapes taxation altogether, but this would be no reason to say that, because this class of property was not taxed .that bank stocks and real estate should also be exempted from taxation. Assessors, like other human beings,, are liable to err. The mere fact that one class of property is assessed at a higher percentage of its value than other classes does not vitiate an assessment. As has been well said, “to make the valuation»of one class of property depend upon the extent of the valuation by assessors of the duty required of them by law in respect to another description of taxable property, would be a recognition and sanction of such violation of duty, which we would not impute tc the legislature unless declared in the most unequivocal terms.'' People v. Supervisors, 60 N. Y. 385.
Congress has given states and territories the authority to tax national hanks. The permission is given in See. 5219, of the revised statutes of the United States, which reads 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 bj the 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 all the shares of national banking associations located within the state, subject to two restrictions, that the taxation shall not be at _ a greater rate than is assessed upon other moneyed capital i i the hands of individual citizens of such state, and that the shares of any national banking association owned by non-residents of any state shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall he construed to exempt the real property of associaiions from either state, county or municipal taxes, to the same extent, according to its value, as other real property is taxed.”
Although the word “State” is used in this' act, it is held that the same power to tax national banks exists in the territories as in the states, Talbott v. Silver Bow, County, 139 U. S. 446.
The taxing power cannot go outside of this act of Congress and tax national hanking associations otherwise than as therein provided.
There is nothing in the complaint to show that the proposed action of the defendants conflicts with this act of Congress. The complaint does not allege that the assessment would be at a greater percentage than is assessed upon moneyed capital in the territory. Such capital, no matter in what invested, is treated uniformly and equally by the Territorial Board of Equalization. There is no restriction in the act of Congress saying that the capital of a bank shall be assessed at the same percentage of value as real estate, as said by the Supreme Court of the United States, in speaking of Sec. 5219, Revised Statutes of the United States: "The restriction therein imposed is equality of assessment, with other moneyed capital; not with other property generally, but that property which passes under the description of moneyed capital. The significance of this expression has been defined by this court in the case of Mercantile Bank v. New York, 121 U. S., cited in Palmer v. McMahon, 133 U. S. 660, 667 as follows: 2. The term "Moneyed capital,” as used in Revised Statutes Sec. 5219, respecting state taxation of shares of National Banks, embraces capital employed in national banks, and capital employed by individuals when the object of their business is the making of profit by the use of their moneyed capital as money, as in banking, as that business is defined in the opinion of the court.” Talbott v. Silver Bow County, 132 U. S. 338.
Let us Suppose that the bank in question in order to protect itself had to take real estate outside of the Territory, — perhaps in Arizona. If such was the case, there can be no doubt but that the authorities of Arizona would tax such real estate, and when the assessor of the county in this territory where the bank is situated, came to assess the stock of the shareholders of such bank could the bank reply, “Our shareholders owe you nothing, we have deducted from the assessed value of their stock the value of the real estate we own in Arizona, and there is nothing coming to you?” Assuredly not. It would be absurd to make such a contention.
2 A bank is different from the stock held by its shareholders. The shareholders can be taxed upon their stock according to the laws prescribed by the sovereign, and the bank itself can be taxed upon the real estate owned by it. This power is given by act of Congress.- Sec. 5219, Revised Statutes of the United States.
The act of Congress above referred to clearly allows taxes to be levied upon the real estate belonging to national banking associations. The English language does not contain words which gives this right more plainly than those employed by the framers of the act; “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.” The Supreme Court of the United States says: “This section, then, of the Eevised 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 state tax therefore which is in excess of and not in conformity to these requirements is void.”
“So self-evident are these conclusions that the adjudicated eases justify the deduction that they have been accepted from the beginning as axiomatic and unquestioned.” Owensboro National Bank v. Owensboro, 173 U. S. 664.
It must, however be borne in mind that the real estate of national banking associations must not be assessed at a higher percentage than other real estate of the same class and character situate in the county and municipality where the tax is sought to be levied.
3 Another question is, however, presented in this case other than those we have above discussed, and that is, should the demurrer interposed to the complaint by the defendants in the trial court have been overruled, and an injunction granted restraining the defendants, George F. Albright, as assessor, and Frank A. Hub-bell, as collector, from re-assessing or making additional assessments on any of the property of the First National Bank of Albuquerque, or any of its shares of stock for the year 1903.
Assessors and collectors, under the laws of this territory have the right to make additional assessments. This power is given by Sections 4055 and 4056 of the Compiled Laws of 1897, and as the return made by the bank, as well as the assessment made by the assessor, were incorrect, and did not comply with the laws of the Territory, the assessor has the authority to make a new and correct assessment. Granted that he has this authority, then the injunction issued by the learned trial court, was improvidently issued, and should be vacated. Until the assessment is made and a tax levied thereon, no one is injured, and suit will not lie. It may be that the officer finds other property, owned by tbe bank, which has not been returned for taxation, and if .such is the case, it would be manifestly improper for any court to hold that the assessor could not assess the same, and enjoin him from so doing, as until the assessment is made no one can determine whether or not it is a proper one.
For reasons stated above, the cause1 is reversed, and remanded to the district court of Bernalillo county, with-instructions to dismiss the complaint, and it is so ordered.
Frank W. Parker, A. J., John R. McFie, A. J., Edward A. Mann, A. J., AY. H. Pope, A. J. concur. Abbott, A. J., took no part in this decision.