City of Wilmington v. Ricaud

• Decision Date: 01 November 1898
• Docket Number: 268.
• Citation: 90 F. 214
• Parties: CITY OF WILMINGTON v. RICAUD.
• Court: U.S. Court of Appeals — Fourth Circuit

90 F. 214

CITY OF WILMINGTON v. RICAUD.

No. 268.

United States Court of Appeals, Fourth Circuit.

November 1, 1898

This case comes up on writ of error from the circuit court of the United States for the Eastern district of North Carolina. The action was at law, and was by stipulation heard by the court without the intervention of a jury. The court below found for the plaintiff, and the case is here on assignments of error. No bill of exceptions is in the record. As the errors charged are errors of law on the face of the record (Young v. Martin, 8 Wall. 354) such bill is not necessary.

The First National Bank of Wilmington was totally insolvent in June, 1891. The insolvency was declared 24th November, 1891 and on the next day W. S. O'B. Robinson was appointed receiver by the comptroller of the currency. He acted as such receiver until 31st December, 1895, when he resigned, and A G. Ricaud was appointed as his successor. In June, 1891, one H. M. Bowden, cashier of the bank, went before the board of tax listers or assessors of the city of Wilmington for the purpose of listing the taxable property of the bank. He included in this taxable property 1,096 shares of the capital stock, which was thereupon assessed, after making certain deductions as provided by law, at $55,105, and upon this was levied a tax of 1 1/2 per cent., amounting to $826.58. The bank did not own any of its capital stock; indeed, could not be the owner of its own stock. Rev. St. U.S. Sec. 5201. But the shares so listed were the property of shareholders residents in said city of Wilmington.

The law of the state of North Carolina on this subject is as follows (Act 1891, c. 326, Sec. 42): 'That stockholders in every bank shall be assessed on the value of the shares in the city where the bank is located for the purpose of taxation for the state and shall be listed in the name of the corporation by the cashier and the tax due the state shall be paid direct to the state treasurer, and that the owners of shares in any bank shall list the value of their respective shares in the county, town, precinct, village or city where they reside for the purpose of county and school taxation.'

The capital stock of the bank consisted of 2,500 shares, of the par value of $100 each, of which residents of Wilmington owned 1,096 shares. The receiver (Robinson) refused to pay this tax. Thereupon levy was threatened upon the real estate of the bank, and on 10th June, 1896, the receiver paid the tax under protest. He then brought this suit for the recovery of the money so paid.

The law of North Carolina on this subject is as follows: 'That no injunction shall be granted by any court or judge in this state to restrain the collection of any tax or any part thereof hereafter levied, nor to restrain the sale of any property for the non-payment of any such tax, * * * but in every case the person or persons claiming any tax or any part thereof, to be for any reason invalid * * * who shall pay the same to the tax collector or other proper authority in all respects as though it was legal and valid, such person may at any time, * * * after such payment, demand the same * * * from the treasurer of the state or of the county, city of town for the benefit or under the authority or by the request of which the same was levied, and if the same shall not be refunded * * * may sue such county, city or town for the amount so demanded, * * * and if upon the trial it shall be determined that such tax or any part thereof was levied or assessed for an illegal or unauthorized purpose or was for any reason invalid or excessive, judgment shall be rendered therefor, with interest. ' The laws of North Carolina provide the means of correcting mistakes made in listing property for taxation. Laws 1891, c. 326, Sec. 25. The board of assessors meet on the second Monday in July, and rectify the tax list and valuation reported to them. This power does not preclude the relief provided in the same chapter, quoted above.

Suit having been brought, the case was submitted to the judge without a jury, and he found for the plaintiff.

H. McClammy, for plaintiff in error.

E. K. Bryan, for defendant in error.

Before SIMONTON, Circuit Judge, and MORRIS and BRAWLEY, District Judges.

SIMONTON Circuit Judge (after stating the facts).

It is very clear that there was a grave mistake made in the matter of listing these shares. The bank did not own one of them. Under the law of North...