State ex rel. Wilson v. First National Bank

79 S.W. 943, 180 Mo. 717, 1904 Mo. LEXIS 92

Opinion

ROBINSON, C. J.

Plaintiff, as collector of the-revenue of Jasper county, began this suit against defendant, the First National Bank of Carterville, Missouri, a banking institution, organized under the laws; of the United States, to collect certain personal taxes;, amounting in the aggregate to $2,563, claimed to be due-from the bank to the county and State for the years; 1897, 1898, 1899, 1900 and 1901, on account of assessments for those years against the shares of stock issued by defendant bank. The following is a copy of the tax-bill upon which the suit is predicated:

“PERSONAL TAX BILL.

“State of Missouri, County of Jasper, ss.

“I, Robert A. Wilson, Collector of the Revenue within and for the county of Jasper, in the State of' Missouri, do hereby certify that the following amounts-of personal taxes remain delinquent in favor of the several funds for the several years on personal property in said county and State, set opposite thereto, to-wit:

“In witness whereof, I have hereunto set nay hand at the city of Carthage, in said county and State, this third day of March, 1902.

“Robert Wilson,

‘ ‘ Collector of the Revenue within and for the county of Jasper and State of Missouri.”

At the trial, judgment was rendered for all the taxes sued for included in the taxbill above set out (except that assessed for the year 1897) to reverse which, defendant has brought the ease to this court on appeal.

Appellant’s first contention is that nothing was shown either by the taxbill, the tax books or the assessment lists offered in evidence, to indicate that any assessment had ever been made or attempted against the shares of stock of the defendant bank, as alleged in plaintiff’s petition, but that on the contrary, the tax books show the assessments were against the capital stock of the bank, and further that if the assessments, as made, be held and treated as assessments against the shares of stock of the corporation bank, still no warrant is found in the statute to justify such assessments of said shares of stock in solido to the bank, as plaintiff claims was done in this ease; and as its final contention, appellant says that if the court should be of the opinion that since the act of 1895, the statute did authorize the assessments of the shares of stock of national banks, to be made direct against the banks in solido, and not against the individual shareholder, then the statute is in violation of the restrictions of section 5219 of the Federal statutes (R. S. U. S. 1878) designating how shares of stock of national banks may be assessed by State authority, wherever such banks engage in business, and for that reason the taxes in this case can not be sustained. Respondent, upon the other hand, while recognizing that the rule in this State prior to 1895 was, as is contended for by appellant, that all taxes against the shares of stock of national banks and all corporate banking institutions doing business in this State, were assessable against the individual owners of the stock and not against the bank itself, contends that since the amendment of 1895, now section 9153, Revised Statutes 1899, the rule is otherwise, and that the shares of stock of corporate banking institutions doing business in this State are properly assessed in solido to the bank direct, as was done by the assessor in this case, and further that such assessments and levy of taxes do not violate the provisions of the Federal statutes authorizing the taxation of shares of stock of national banks by State authority.

Respondent’s chief reliance, as we understand his effort to sustain the assessment of the shares of stock of defendant bank m solido direct to the bank, as in the present instance, is made to depend upon the fact that by the amendment of 1895, supra, there has been left out or omitted, in the body of the act, the following words, “and the names of the persons who hold the same,” found in the law prior to its amendment, prescribing the duties of the president or other chief officer in preparing their statements for the assessors; and that all the assessments involved in this case have been made since the act of 1895 went into effect.

The act of 1891, amended by the act of 1895, provides as follows: “The property of manufacturing companies and other corporations named in article eight, chapter forty-two, and of all other corporations, the taxation of which is not otherwise provided for by law, shall be assessed and taxed as the property of individuals. Persons owning shares of stock in banks, or any joint stock institution or association doing a banking business, or any insurance company, whether of fire, marine, life, health, accident or other insurance, incorporated under or by any law of the United States or of this State, shall not be required to deliver to the assessor a list thereof; but the president or other chief officer of such corporation, institution or association shall, under oath, deliver to the assessor a list of all shares of stock held therein and the names of the persons who hold the samieJ with the face value thereof, and shall also deliver to the assessor a complete statement of all reserve funds, undivided profits, premiums or earnings, and all other values belonging to such corporations, companies, institutions or associations. And such statement of shares of stock, together with the statement of reserve funds, undivided profits, premiums or earnings and other values so delivered to or furnished the assessor, shall, for the purposes of taxation, be treated as that amount of money, less the taxable value of the real estate and fixtures, subject to the right of the parties in interest, to show the impairment, of such shares of stock before the board of equalization. Private bankers, brokers, money brokers and exchange dealers shall make like returns 'and be assessed and taxed thereon in like manner as herein above provided-insurance companies or any corporations or associations doing business on the mutual plan without capital stock, shall make like returns of the net value of all assets or values belonging thereto, which net value shall be assessed and taxed in the manner hereinbefore provided: Provided, however, that the license hereafter required to be paid by any such bankers, brokers and dealers, in addition to such taxes, shall not exceed one hundred dollars per annum.” Approved April 1, 1891. ;[Laws 1891, p. 195.]

The amendment of 1895 reads: “The. property of manufacturing companies and other corporations named in article 8, chapter 42, and all other corporations, the taxation of which is not otherwise provided, for by law, shall be assessed and taxed as such companies or corporations in their corporate names. Persona owning shares of stock in banks, or any joint stock institution or association doing a banking business, or any insurance company, whether of fire, marine, life, health, accident or other insurance, incorporated under or by any law of the United States or of this State, shall not be required to deliver to the assessor a list thereof, but. the president or other chief officer of such corporation,, institution or association shall, under oath, deliver to* the assessor a list of all shares of stock held therein,, amd the face value thereof, the value of all real estate, if any, represented by such shares of stock, together with all reserved funds, undivided profits, premiums or earnings, and all other values belonging to such corporation, company, institution or association; and such shares, reserved funds, undivided profits, premiums or earnings, and all other values so listed to the assessor, shall be valued and assessed as other property, at their true value in money, less the value of the real estate, if any, represented by such shares óf stock Private bankers, brokers, money brokers and exchange dealers shall make like returns, and be assessed and taxed thereon in like manner, as hereinbefore provided. Insurance companies, or any corporations or associations doing business on the mutual plan, without capital stock, shall make like returns of the net value of all assets or value belonging thereto, which net value shall be assessed and taxed in, the manner hereinbefore provided: Provided, however, that the license hereafter required to be paid by any such bankers, brokers, and dealers, in addition to such taxes, shall not exceed one hundred dollars per annum. It is hereby made the duty of the county clerk to include in his abstract of the assessor’s books required to be sent to the State Auditor, valuation ofiall property assessed under this section, under the head of 'corporate companies,’ and in addition thereto he shall make out from the lists delivered to the assessor as above provided, and. send the same to the State Auditor to be laid before the State Board of Equalization, on or before the 20th day of February in each year, an abstract of the assessments of all corporations or persons doing a banking or insurance business in his county, showing the name of each bank and insurance company, the number of shares of stock and their face value, amount of reserve funds, undivided profits, premiums or earnings, and all other value, together with the assessed value thereof, also the value of real estate deducted as above provided, and the assessed value of such real estate as shown by the real estate book.” Approved April 9, 1895. [Laws 1895, p. 242.]

To reach his present conclusion, respondent reasons as follows: that, as by the act of 1895, supra, all persons owning shares of stock in the banking corporations of the State are expressly exempted from furnishing or delivering to the assessor of their respective counties a list of such property, and as the presidents or other chief officers of such corporations doing business in this State are required to furnish and deliver under'oath to the assessor a list of all shares of stock issued by such corporations to the assessor, and the face value thereof, but are now no longer required to give or disclose to the assessor, in the lists so furnished, the names of the person or persons who own the stock so listed for assessment, as provided by the law before the amendment of 1895, it must be determined therefrom, that the Legislature intended that the stock of banking corporations from henceforward should be assessed to the corporations required to list and give it in for assessment, as was done by the assessor in this case, and that it is no longer required to be assessed to the individual stockholder owning said shares of stock. In other words, it is respondent’s contention, that the omission of the words “and the names of the persons who hold the same” (found in the act of 1891, and the act of which it was an amendment, but absent from the act of 1895, amending the act of 1891) evinces the legislative intent to change the mode and manner of assessing the shares of stock of all banking corporations of the State.

We think respondent has been led into the error of his present position by giving both too much prominence, and too much meaning to the words in question, omitted from the act of 1895. They were of little or no special significance as found in the statute prior to the amendment of 1895, and their absence from that amendatory act is absolutely of no practical consequence whatever, and in no way operates to influence the determination of the meaning to be given to the act, or of ascertaining its purpose. If the amendment of 1895 had been confined solely to the striking out of the words in question from the law as it stood prior to the act, no change in the particular as to whom the shares of stock of banking corporations should be assessed, would have been effected; no change in the purpose or operation of the law would have occurred. To provide that the president or other chief officer of banking corporations of the State, ‘ ‘ shall under oath deliver to the assessor a list of all shares of stock held therein, and the face value thereof, ” is to provide that the president or other chief officer “shall under oath deliver to the assessor a list of all shares of stock therein, and the names of all persons who hold the same, with the face value thereof,” as the statute read before the amendment in question. The requirement that the president or other chief officer of a banking corporation shall deliver to the assessor “a list of all shares of stock held therein” (as the term is used in the act of 1895) necessarily means that “a list of all shares of stock held therein, and the trames of the persons who hold the samre, atrd the face value thereof,” shall be delivered, as the term is used in the act of 1891. The term, “a list of all shares of stock, ’ ’ as now used in the statute, necessarily means, “a list of all shares of stock, with the names of the owner or holders thereof, and the amount of such holdings.” One can not think of a list of the shares of stock of a banking corporation, independent of and without the names of its owners and the amount of their respective holdings. The language of the act in question, now section 9153, Revised Statutes 1899, with the above quoted words omitted therefrom, means all and nothing more, in so far as concerns the question as to whom the shares of stock in banking corporations shall be assessed, as did the law of which it is an amendment. To list the shares of stock of a banking corporation, one must give the number of shares of stock held by each individual shareholder and the names of the owner or owners thereof. Until that is done no list is furnished. It must also be noticed from the most casual reading of the act of 1895, and the act of 1891 of which it is amendatory, that neither the act of 1891 nor the amendment of 1895, undertook to deal with the question to whom shares of stock of banking corporations should or were to be assessed. The important change in the law sought by the act of 1895, so far as concerns banking corporations, was to have the shares of stock of such corporations (required to be listed by the chief officers thereof, for the assessors), valued and assessed at their true value in money, as all other property in this State, in lieu of the old plan of having such bank stocks assessed at their face value, as was done prior to 1895; but no change in the established policy of the law of the State requiring that property be assessed to and in the name of its true owner, or to those having the care, custody and management of same, as agent guardian, trustee^ etc., for said owner, was sought or attempted.

If a change in the mode and manner of the assessment of property is to be inaugurated in this State as radical as that involved in the assessment attempted, in this case, against the defendant herein, it should be found in language most clear and unmistakable, and not worked out by vague inferences to be drawn from the mere incidental fact that a few unimportant words of a prior law have been omitted in an amendatory act, having for its main purpose, not the question as to whom property shall be assessed, but of affecting a change in the mode of valuing property of a particular kind, for assessments. But as said before, no such change in the law of our State, as that suggested by respondent, was attempted, or affected, by the amendment of 1895 in question, and the law to-day upon the subject as to whom shares of stock of banking corporate institutions shall be assessed, stands as it always has, that it be assessed in the name of its owner or owners or of those having its lawful custody and care as agents, trustees or otherwise, and not to the corporations that issued it. [Abbott v. Lindenbower, 42 Mo. 162; State ex rel. v. St. Louis County, 84 Mo. 234; City of Jefferson v. Mock, 74 Mo. 61; State ex rel. v. Railroad, 114 Mo. 7.]

Since, then, respondent concedes that prior to 1895, in this State, all shares of stock of all banking corporations were property assessed to the individual stock or shareholder owning the same, and not to the corporations as the rule has been announced by this court in the recent case of State ex rel. Collector v. Merchants Bank of Jefferson City, 160 Mo. 640 (a case in all particulars like the present, except the bank then proceeded against was organized under the laws of this State, and not, as with defendant bank, under Federal authority), and since we have determined that by the act of 1895 no change has been made in the law affecting the question as to whom such shares of stock of banking corporations shall be assessed, a consideration of the other objection made by appellant to the assessments in question, or of the question of the right of the State to prescribe such a mode (as respondent contends has been adopted), becomes unnecessary. The assessment in this case of the shares of stock to defendant bank (of which it is agreed defendant was neither the lawful custodian at that time, nor its owner), was erroneous, and as a consequence, the tax proceeding based thereon must fail. A valid assessment has always been held an essential prerequisite to the lawful exercise of the power of taxation.

There is nothing in the facts of this case calling for a consideration of the question of the right of the State to impose upon her corporate banking institutions the duty of paying the taxes imposed against their stockholders, and of imposing penalties for their failure so to do, as is provided in sections 9155 and 9156, Revised Statutes 1899, to which our attention is called by respondent. Those sections read:

1 ‘ Sec. 9155. The taxes assessed on shares of stock embraced in such list shall be paid by the corporations, respectively, and they may recover from the owners of such shares the amount so paid by them, or deduct the same from the dividends accruing on such shares; and the amount so paid shall be a lien on such shares, respectively, and shall be paid before a transfer thereof can be made.

“Sec. 9156. If the president or'other chief officer of any such corporation fail to comply with the provisions of this article, he shall forfeit to the State the sum of one thousand dollars, to be recovered by indictment in any court of competent jurisdiction.” ^

In this action, is sought to be recovered $2,563, the amount of taxes that have been assessed against defendant bank, and not the recovery of $1,000, the penalty described by section 9156, supra, for the bank’s failure to pay an assessment made against the stockholders of the bank, on account of the shares of stock held therein by them. Appellant makes no challenges of the State’s authority to impose upon banking corporations, wishing to do business in this State (whether organized as state or national institution), the duty of paying taxes that may be assessed against the shareholders on account of shares of stock held by them in said banks with proper authority for the banks to reimburse themselves for such outlay, as is provided for by section 9155; but its contention is, that no such question arises in this case, and that no consideration of said sections 9155 and 9156, whether read by themselves, or in connection with section 9153, with which, we are asked to read and construe them, will serve to throw any light upon the proposition for solution here, to-wit, to whom are the shares of stock in banking corporations in this State properly assessable? and in that contention we concur.

The judgment of the trial court was for the wrong party, and should he reversed, and it is so ordered.

Marshall, Gantt, Burgess, Vallicmt and Fox, JJ., concur ; Brace, J., dissents.