Bank of America Nat. Trust & Savings Ass'n v. Mundo
| Decision Date | 03 April 1951 |
| Citation | 37 Cal.2d 1,229 P.2d 345 |
| Court | California Supreme Court |
| Parties | BANK OF AMERICA NAT. TRUST & SAVINGS ASS'N v. MUNDO, Judge. L. A. 21444. |
Holbrook & Tarr, W. Summer Holbrook, Jr., and Francis H. O'Neill, Los Angeles, for petitioner.
James Don Keller, Dist. Atty., San Diego, and Carroll H. Smith, Chief Trial Deputy Dist. Atty., San Diego, for respondent.
Bank of America National Trust and Savings Association is the plaintiff in eight actions to recover taxes paid under protest. It now asks that, by writ of mandate, the superior court be compelled to order the production of certain records of the county assessor. The asserted purpose of having them before the court is to enable the respondent judge, by an examination of them, to determine whether their contents are confidential and whether public interest would suffer by disclosure of the data.
In the actions brought by the bank it is charged that, in assessing its property during certain years, the assessor discriminated against it and intentionally and systematically favored other property owners. Specifically, the bank alleges that the assessed valuation placed upon its buildings included vault doors and counterlines, classified as improvements, but in all nonbanking institutions, similar articles were classified and assessed as personal property. Such discrimination, the bank concludes, is prohibited by section 5219 of the Revised Statutes of the United States, 12 U.S.C.A. § 548, because the real property of a national bank may be taxed only 'to the same extent, according to its value, as other real property is taxed' and also violates constitutional guarantees.
The bank has endeavored to obtain evidence of discriminatory assessments by taking depositions of three deputy county assessors. The witnesses testified that they had assessed or appraised buildings, trade fixtures and machinery in approximately 13 types of industries in the county. They stated the general factors and tests relied upon in making assessments. When asked how they had classified certain items in specific places of business, the witnesses replied that they could answer only after refreshing their memories by reference to the tax records. However, they declined to refer to the records upon the ground that the documents contain matter of prohibition and privilege under sections 408 and 451 of the Revenue and Taxation Code and section 1881, subdivision 5, of the Code of Civil Procedure.
The bank then cited the witnesses to appear before the superior court. It also moved for an order directing each witness to refresh his memory by use of the particular document applicable, and thereafter to answer the questions asked of him.
The superior court issued a subpoena duces tecum directing the county assessor to produce the documents. The assessor refused to comply with the subpoena upon the same ground stated by his deputies. The court then refused to order the witnesses to answer the questions and quashed the subpoena duces tecum.
The bank's purpose is to secure evidence that, during the tax years in question, the assessor systematically classified and assessed as personal property the counters and other business equipment in nonbanking institutions. Upon establishing that fact, the bank then proposes to show that such items are similar to the vault doors and counterlines in bank buildings which, pursuant to an intentional discrimination against national banks, were classified as improvements.
None of the suits has yet been tried. Demurrers to the complaints have been filed, but the hearings upon them have been deferred pending the taking of the depositions. It does not appear from the record whether, prior to filing its action, the bank applied to the board of equalization for correction of the assertedly erroneous assessments. However, in one of the briefs, counsel for the bank states, 'In certain of the cases appearance was made before the county board of equalization'.
In those cases where the bank did not make timely application to the board of equalization for relief from the assessment complained of, it cannot maintain the action for the recovery of taxes. ...
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