Territory of New Mexico v. First National Bank

10 N.M. 283

Opinion

McFIE, J.

The questions to be determined in this case are, first, whether the territorial board of equalization had power to require the $15,000.00 of capital stock to be added to the amount of $75,000.00 which the defendant had returned as the capital stock of the bank, there being no appeal taken from the board of county commissioners of Bernalillo county, and, second, if this could be done, had the defendant a right of notice of the action taken by the territorial board of equalization. From the voluminous statement of facts it will be seen that while no appeal was taken from the action of the board of county commissioners of Bernalillo county, sitting as a board of. equalization, the territorial board of equalization did take .action which resulted in adding $15,000.00 to the capital stock to be assessed against the bank for the year 1897. It appears that three other banks, two of them national banks, the same as the defendant in this case, had appeals pending before the territorial board from the assessment of their capital stock, and upon determining these appeals the board, upon examination, found that the scale of valuation of shares of the capital stock and surplus of all of, the banks of the territory had not 'been made with reasonable uniformity by the different county assessors, as required by law. The said territorial board of equalization thereupon made two orders applicable not only to the three banks which had taken the appeal, but also to all the other banks in the Territory, fixing the amount for which they should be assessed at 60 per cent of the par value of their capital stock and required the assessment of the capital stock of all the banks of the Territory to be equalized, so that all of the banks should be assessed at the uniform rate of sixty per centum of their capital stock. This order, of course, included the defendant bank and the order was carried into effect by the assessor, and while it appears that $15,000.00 of the capital stock was added to. the return as an additional assessment, it was in effect simply carrying out the requirement of the territorial board of equalization, was the act of that board, and counsel so recognized in their briefs. The return made by the bank fixed the valuation of the capital stock at $75,000.00, but it appears from the declaration, the additional assessment and the papers in the case, that the capital stock of this bank was really $150,000.00, and that adding the $15,000.00 of capital stock required by the territorial board to be added to the amount stated in the return of $75,000.00; the amount fixed by the board upon which the bank should be taxed, was $90,000.00, or sixty per centum of the par value of the capital stock of the bank. The power of the board to take this action is called in question and the provisions of the statute conferring its powers must determine this question. For the purpose of this case it is only necessary to examine section 2636, C. L. 1897, as this is undoubtedly the section conferring the power exercised by the board, if such power exists. Section 2635 is referred to by counsel for the plaintiff, but that section refers to the original jurisdiction of the board to assess railroad, telegraph, telephone and sleeping car companies, and is not in point in this case, as the making of an original assessment was not attempted. Section 2636 requires said board to meet annually on the second Monday of September aá a board of equalization and appeal only. Their duty as a board of equalization is prescribed therein as follows:

“It shall be the duty of the auditor of the Territory at such meeting to furnish said board with the assessment roll of each county of the territory for their inspection and examination for the purpose of ascertaining the rate of assessment and valuation of property therein, and whenever they are satisfied that the scale of valuation has not been made with reasonable uniformity by the different county assessors the said board shall adjust and equalize the said assessment rolls by raising or lowering the valuation thereof, so that the same shall be of uniform value throughout the teiritory.”

The first assignment of error is that “the court erred (V) in finding that the territorial board of equalization had original jurisdiction on its own motion to raise the assessment of said defendant.”

The second assignment is wholly dependent on the determination of the first. The third assignment is as follows:

“Because said territorial board of equalization has no power or jurisdiction to raise the assessment of individuals except upon appeal.”

Considering the third assignment first, counsel, in his brief on behalf of appellant, asks the question, did the territorial board of equalization have the power to raise the assessed valuation of appellant’s property notwithstanding the action of the assessor and the board of county commissioners and without appeal from said action, and without notice or opportunity to be heard. The answer to this question‘disposes of the whole case. It is well to keep in mind at the outset, that the county board of equalization and the territorial board of equalization have entirely different jurisdictions; one acts necessarily within the county which the board represents; the other is .given extended jurisdiction embracing the entire Territory. The territorial board may consider and decide cases of appeal under the jurisdiction conferred upon it, but in addition to this the territorial board is given original and enlarged jurisdiction to determine such questions as affect assessments of property in the different counties, and also with regard to the effect of those assessments throughout the territory to secure uniformity. We see no reason why the territorial board should not exercise the power if conferred by the statute, regardless of whether an appeal was taken, from the action of the county board or not. The county board has power to equalize the assessment of property within the county, and the right of appeal is given to enable citizens of the county, to protect themselves and obtain their legal rights in cases of unjust discrimination or other irregularities in the assessments by the county assessor, and for the rehearing of such cases appellate jurisdiction is, given the territorial board; but the assessment of one county, while it may be uniform within that county upon certain kinds of property, may not be uniform when compared with the assessment of the same kind of property in other counties of the territory. The auditor is required by law to submit the tax rolls of the different counties to the territorial board, for examination, for the purpose of determining the question of reasonable uniformity in the valuations of property. Take for instance the capital stock of banks as one class of property borne upon the assessment rolls of the county of Bernalillo. While the capital stock of all the banks of Bernalillo county may be uniformly assessed, and when considered by the equalization board of the county of Bernalillo, the assessment is unobjectionable and uniform, when the assessment roll of Bernalillo county is compared with the assessment rolls of other counties, it may be that the valuation placed upon the capital stock of the banks of Bernalillo county is not at all uniform with the assessment of similar stock of banks in other counties. Could it be contended in that event, that because there was no appeal from the action of the board of equalization of Bernalillo county, the territorial board of equalization was powerless to make the assessment of bank stock in Bernalillo county and other counties uniform by either adding to or taking from the valuation fixed by the assessors of the different counties which was necessary to secure uniformity in the assessment of such stock? Under section 2636 above cited, we think not. The county board of equalization certainly cannot deprive the territorial board of any jurisdiction that may be conferred upon it by the statute. The county board of equalization acts with a view of uniformity within the county without any regard to the assessments, even of the same kind of property in other counties of the territory, and the want of uniformity in the assessment of the different classes of property returned by county assessors can never be known, until the assessment rolls of the different counties are compared by the territorial board of equalization. If, because no appeal is taken from the action of the county board of equalization, the territorial board of equalization is powerless to either increase or decrease valuations made by the. assessor, approved by the county board of equalization, then the territorial board of equalization would be powerless to secure the reasonable uniformity required by the statute. Section 2636 expressly says:

“It shall be the duty of the auditor of the Territory at such meeting to furnish said board with the assessment rolls of each county of the Territory for their inspection and examination for the purpose of ascertaining the rate of assessment and valuation of property therein, and whenever they are satisfied that the scale of valuation has not been made with reasonable uniformity by the different county assessors, the said board shall adjust and equalize the said assessment rolls by raising or lowering the valuation thereof so that the same shall be of uniform value throughout the Territory.”

Board of equaiition°on capital uniformity^8! This section of the statute, in our opinion, confers jurisdiction upon this territorial board, to SO’ adjust and equalize the assessment rolls by raising or lowering ^ valuati°n of certain classes of property, as may be necessary to secure uniformity throughout the Territory. Counsel for the appellant attaches much importance to the words “assessment rolls,” used in this section of the statute, and contends that all the territorial board has power to do, is to increase or' diminish the total assessment of the respective counties; that is to say, if the scale of the valuation is lower in one county than in others, as shown by the total assessments of that county, the board must increase or diminish the entire assessment of the county, and has no power to alter the valuation of any particular class of property borne upon the assessment roll of one county, so as to make it uniform with the scale of valuation fixed by the assessor of another county upon the same class of property. This construction of the language of the statute is, in our opinion, erroneous. To follow the rule contended for by appellant’s counsel would do a great injustice. For instance, the assessment roll contains property such as real estate, animals, numerous kinds of personal property, and also the capital stock of banks, in counties where there are banks. To contend that the assessment of the entire county must be increased or diminished in order to equalize it with the assessment of other counties in the Territory, would require the raising of the valuation and increase the taxation upon all classes of property enumerated in the assessment roll of the county. Take, for instance, the item of real estate. The difference in the value of real estate in the different counties is very great, and as to it the local board and assessor are better able to place a proper value upon it than the territorial board, because its value depends largely upon local conditions. It would seem unreasonable and, therefore, not within the legislative intent to say, that all the owners of real estate in the county should be compelled to submit to an increase in the valuation fixed upon their real estate, because hank stock or other property was assessed below its proper value. Much more just and reasonable is a construction which would authorize the board to take, for instance, the capital stock of banks, the valuation of which' is approximately the same throughout the Territory, and adjust and equalize the valuation of this particular class of property so as to secure uniformity in its valuation throughout the Territory; and so as to the valuation of other classes of property. Indeed, the language of the section referred to specifically confers power upon this board to raise and lower the valuation of property found upon the assessment rolls, so as to secure uniformity in the scale of valuation throughout the Territory, and it seems to necessarily follow from this language, that the board is required to compare the scale of valuation upon each particular class of property throughout the Territory, and that this raising or lowering does not refer to the raising and lowering of the entire tax roll of the county, because, to increase the valuation of the entire tax roll of all the taxable property assessed in the county, would in many instances, do great injustice to those parties whose property was listed at its full value. The action of the board in this case shows an exercise of the power directly conferred upon them to equalize the assessment of this particular class of property, known as bank stock, as well as all other classes, and to raise or lower the scale of valuation placed upon such property by the assessor in order to perform the duties required of them by law. So far as this case is concerned, all the other questions are eliminated from it except the bank stock; it does not appear that the territorial board of equalization took any action in regard to other property, and it is immaterial whether it did or not. The action taken by the board simply made uniform the scale of valuation upon bank stock throughout the Territory, and in that we are of the opinion that they acted within the scope of their power conferred upon them by law. It is true that in equalizing the assessments of this particular class of property in the different counties of the territory, by increasing or lowering the scale of value placed upon such property by the different assessors, they necessarily changed the value and the assessment of the property of the defendant, but this was only indirectly, and was a necessity to accomplish the purpose for which the board was established. It is reasonable to.assume that the intent of the Legislature was to enable this board, in case bank stock was assessed at fifty per centum of its face value in one county, sixty per centum in another and seventy-five per Centum in a third, to equalize the unequal rate of valuation, by fixing a common value upon such property throughout the Territory, without increasing the value of such property as may have been assessed at its proper valuation. The board certified that the scale of valuation upon bank stock in the different counties was not uniform, and they fixed a uniform scale of valuation for the stock of all banks in the Territory. By this means the result of the equalization of this class of property would fall upon the owners of such property, and this is just as it should be. It necessarily affects individual assessments and there could be no equalization of the assessments of property, that would not, in that sense, operate to change individual assessments. But this effect is unavoidable, and as individuals affected by an equalization of values have no just ground of complaint, if the board has such power conferred upon it in the interest of the entire Territory, individual interest must yield to the public good, as it has been found necessary to' establish some method of adjusting and equalizing the assessment of property in many, if not all, of the states and territories. It will be observed that the action of the board, in this instance, was not confined in its operation to the assessment of the defendant in this case, but the facts show that all of the banks of the Territory were placed upon an exact equality, and capital stock of each of them was assessed at precisely the same valuation, and in order, no doubt, to avoid injustice in fixing the valuation of the capital stock, of different banks at the full cash value of their capital stock, only sixty percentum of the par value of their capital stock was fixed as a reasonably uniform scale. We are of the opinion that the board acted clearly within the scope of its authority in thus equalizing the scale of valuation upon bank stock, and they had a perfect right to alter the scale of valuation placed upon such stock by the assessor and the board of equalization of Bernalillo county, regardless of the question of appeal.

Mboardf notice? The statute relating to the assessment of property within the county requires, that where the board of equalization or the assessor increases the valuation of property as returned by the taxpayer that notice of such increase shall be given the taxpayer affected, and the object of this notice is to give the taxpayer an opportunity to object to the altering of the assessment and to appeal if he so desires, but there is no such provision in regard to the action of the territorial board of equalization. This failure to provide for such notice was, no doubt, intentional on the part of the Legislature, because it would be both expensive and burdensome; in fact, it would be practically impossible to notify all individual- taxpayers whose assessments might be affected by the territorial board of equalization, in their effort to secure the reasonable uniformity required by law. Indeed, it might happen that almost all the taxpayers of a county or the Territory might be affected by the action of the board of equalization, and it would be unreasonable to require a notice to be served upon all who might be affected by the action of such territorial board of equalization. It is reasonable to believe that the Legislature in fixing a specified date upon which this board should meet, clothed with territorial jurisdiction for the purpose of equalizing the valuations of the property of the Territory, deemed this a sufficient notification to all parties interested to attend the meetings of such board, and there to look after any interests liable to be affected by the action of the board within the scope of its powers, and for that reason made no further provision for notice. This question has been passed upon by the Supreme Court of the United States in a case decided by the Supreme Court of the State of Illinois, known as the State Railroad Tax Cases, 92 U. S. 575. In that case the court said:

“It is charged that the board of equalization increased the estimates of value so reported to the auditor without notice to the companies, and without sufficient evidence that it ought to be done, and it is strenuously urged upon us that, for want of this notice, the whole assessment of the property and levy of taxes is void.” * * * “It is hard to believe that such a proposition can be seriously made. If the increased valuation of property by the board without notice is void as to railroad companies, it must be equally void as to every other owner of property in the state, when the value assessed upon it by the local assessor has been increased by the board of equalization. How much tax would thus be rendered void it is impossible to say. * * * Must each one of these have notice and a separate hearing? If a railroad company is entitled to such notice, surely every individual is equally entitled to it. Yet, if this be so, the expense of giving notice, the delay of hearing each individual, would render the exercise of the main function of this board impossible. The very moment you come to apply to the individual the right claimed by the corporation in this case, its absurdity is apparent. Nor is there any hardship in the matter. The board has its time of sitting fixed by law. Its sessions are not secret. No obstruction exists to the appearance of any one before it to assert a right, or redress a wrong; and, in the business of assessing taxes, this is all that can reasonably be asked.”

This case was affirmed in McMillen v. Anderson, 95 U. S. 36, in which the court said:

“It seems to be supposed that it is essential to the validity of this tax that the party charged should be present, or had any opportunity to be present, in some tribunal when he was assessed, but this is not, and never has been, considered necessary to the validity of a tax.”

The same doctrine was announced and affirmed in the Kentucky Railroad Case, 115 U. S. 321. It would seem, therefore, that such a notice has not been provided for in the laws of some of the states, and the courts hold that the failure to provide for or give the taxpayer a specific notice, does not «affect the validity of the tax. The Illinois law is somewhat different from the law of this Territory, wherein it limits the state board of equalization to aggregates; this does not seem to be the case in this Territory, but the omission of a provision for notice of the action of the board of equalization is common to that state and this Territory.

There being no error in the record, the judgment of the court below is affirmed with costs.

Parker, J., and Mills, C. J., concur. Leland, J., did not participate in the hearing of this case.