City of Springfield v. First Nat'l Bank of Springfield

• Decision Date: 31 October 1885
• Citation: 87 Mo. 441
• Parties: THE CITY OF SPRINGFIELD, Appellant, v. THE FIRST NATIONAL BANK OF SPRINGFIELD.
• Court: Missouri Supreme Court

87 Mo. 441

THE CITY OF SPRINGFIELD, Appellant,

v.THE FIRST NATIONAL BANK OF SPRINGFIELD.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Greene Circuit Court.--HON. W.F. GEIGER, Judge.

AFFIRMED.

J. P. McCammon for appellant.

The demurrer to the petition should have been overruled. Shares in national banks are liable to assessment. Lionberger v. Rowse, 43 Mo. 67; First National Bank v. Meredith, 44 Mo. 500; Curtis v. Ward, 58 Mo. 295. Under section 6693, Revised Statutes, 1879, it is the duty of the bank to pay the tax, and it may recover from the owners of the stock the amount so paid. First National Bank v. Meredith, 44 Mo. 500; National Bank v. Commonwealth, 9 Wallace, 363; First National Bank v. Douglas Co., 1 Cent. Law Journal, 589; First National Bank v. Peterborough, 22 Am. Rep. 424, 427; Commonwealth v. Bank, 1 Am. Corp. Cases, 558.

J. R. Vaughan for respondent.

(1) The petition is insufficient in that it avers no authority in the assessor by ordinance or otherwise, to assess the property in the manner stated, or in any other way. (2) The petition does not charge, as it should, any actual levy or extension of taxes on a tax book by the city clerk or by some one authorized to do so. State, etc., v. Harper, 11 Mo. App. 301; Brown v. Harris, 52 Mo. 306. (3) The tax is invalid because levied against the bank upon its entire capital stock, and not specifically against the shareholders. Lionberger v. Rowse, 43 Mo. 67; First National Bank v. Meredith, 44 Mo. 500; State, etc., v. Dowling, 50 Mo. 134; St. Louis & B. S. Association v. Lightner, 42 Mo. 421; Nat. Com. Bank v. Mayor, etc., 62 Ala. 284; Sumpter Co. v. Bank, 62 Ala. 464. (4) There is nothing stated in the petition which gives the city the right to sue. City, etc., v. Picot, 38 Mo. 126; State, etc., v. Goodnow, 80 Mo. 271; State, etc., v. Heman, 7 Mo. App. 428; Alexander v. Helber, 35 Mo. 334; Town, etc., v. Miller, 77 Mo. 56. (4) A demand for the payment of the tax should have been alleged. R. S., sec. 6754; Thompson v. Gardner, 10 Johns. 404; St. Anthony v. Greely, 11 Minn. 321.

NORTON, J.

This case is before us on plaintiff's appeal from the action of the circuit court in sustaining a demurrer to the following petition: The petition, after stating that defendant was a banking corporation, organized under the laws of the United States, and doing business in Springfield, proceeds to state that plaintiff by her charter, granted by a public act of the legislature, had power by and through her city council to levy and collect taxes upon real and personal property within her corporate limits not to exceed one per cent. of the assessed value thereon, and to apply such penalties for the nonpayment thereof as said council may see fit. That by virtue of said power, the city council of said city of Springfield did, by an ordinance approved March 29, 1880, entitled an ordinance for the levying of a tax for current expenses, and a special tax for an “interest and sinking fund and past indebtedness fund,” levy a tax for said year 1880, of one dollar on the one hundred dollars valuation on all property, real and personal, within the corporate limits of said city, which was subject to taxation, which said levy was distributed as follows, viz.: One-half of one per cent. for the current expenses of the city for the fiscal year, commencing March 1, 1880, and one-half of one per cent. for the interest and sinking and past indebtedness funds. That as a basis for the said levy, and in conformity with an ordinance entitled “an ordinance in revision of ordinances for the government of the city of Springfield,” approved March 22, 1878, the duly elected and qualified assessor of said city, acting under the authority of said city council, as expressed in said last mentioned ordinance, did, between the first Monday in August, 1879, and the first Monday in February, 1880, make an assessment of all the property, real and personal, within the corporate limits of said city which was subject to taxation.”

That at said dates hereinbefore mentioned, the capital stock of said defendant was $50,000, and the sum was divided into shares of one hundred dollars each, par value. That between said dates, to-wit: the first Monday in August, 1879, and the first Monday in February, 1880, the said city assessor did call upon and demand of the cashier and the president of said defendant, a list of stockholders of said defendant and the amount or number of shares held by each; but said cashier and said president, each in violation of the statute in such case made and provided, failed and refused to deliver said list of shareholders as aforesaid, wherefore the said assessor was unable to assess the individual shareholders as required by law; but plaintiff avers that, acting upon his best information and under the law in such case made and provided, said city assessor assessed said defendant $100,000 on the aggregate shares of stock of said defendant. That defendant at no time before the commencement of this suit, and not until a long time after said commencement, objected to the irregularity of said assessment against said bank for the aggregate shares; but on the contrary, by its cashier, tendered to plaintiff the sum of three hundred and thirty-three dollars in payment of said taxes; the said defendant objecting only to the assessment of said stock at its full valuation, instead of a two-thirds valuation thereof. That afterwards the board of equalization of Greene...