First Security Bank of Idaho v. Fremont County

• Decision Date: 22 November 1934
• Docket Number: 6186
• Citation: 37 P.2d 1101,55 Idaho 76
• Parties: FIRST SECURITY BANK OF IDAHO, a Corporation, and FIRST SECURITY BANK OF ASHTON, a Corporation, Respondents, v. FREMONT COUNTY, W. R. HUMPHRIES, Assessor and Tax Collector of Said County, and JAMES A. FREDERICKSON, Sheriff of Said County, Appellants
• Court: Idaho Supreme Court

37 P.2d 1101

55 Idaho 76

FIRST SECURITY BANK OF IDAHO, a Corporation, and FIRST SECURITY BANK OF ASHTON, a Corporation, Respondents, v. FREMONT COUNTY, W. R. HUMPHRIES, Assessor and Tax Collector of Said County, and JAMES A. FREDERICKSON, Sheriff of Said County, Appellants

No. 6186

Supreme Court of Idaho

November 22, 1934

TAXATION-STATE BANK CAPITAL STOCK-EXEMPTIONS-ACTION TO ENJOIN COLLECTION OF TAX-REAL PARTY IN INTEREST-STATUTES, CONSTRUCTION OF-TITLE-PROVISIONS GERMANE-ONE SUBJECT.

1. Statute exempting corporate capital stock from taxation after payment of income tax held applicable to state banks so as to relieve bank stock from taxation where legislature showed clear intention of such exemption by expressly including such banks within meaning of term "corporation" in statute (I. C. A., secs. 61-1401 to 61-1407; secs. 61-2402, 61-2425, as amended by Laws 1933 chap. 159, secs. 1, 11; sec. 61-2478A, as added by Laws 1933 chap. 159, sec. 21).

2. State bank held entitled to maintain suit to enjoin collection of allegedly invalid tax on capital stock as real party in interest, as against contention that shareholders were real parties in interest, since statute providing for such taxation required bank to pay assessment and, although bank might look to stockholders for reimbursement, statute made no provision for recovering payment of tax not justly due (I. C. A., secs. 5-301, 61-1401 to 61-1407; secs 61-2402, 61-2425, as amended by Laws 1933, chap. 159, secs. 1, 11; sec. 61-2478A, as added by Laws 1933, chap. 159, sec. 21).

3. Inclusion in amendatory statute providing for corporate taxation, of exemption of bank stock therefrom, held not violative of constitutional provision prohibiting embracing of more than one subject in one act, purpose of Constitution being merely to prohibit practice of bringing together in one bill diverse subjects and to prohibit "log-rolling" legislation (I. C. A., secs. 61-2402, 61-2425, as amended by Laws 1933, chap. 159, secs. 1, 11; Const., art. 3, sec. 16).

4. Reference in title of amendatory statute providing for corporate taxation to section numbers of statute to be amended held sufficient compliance with constitutional requirement that subject of act be expressed in title (I. C. A. 1932, secs. 61-2402, 61-2425, as amended by Laws 1933, chap. 159, secs. 1, 11; Const., art. 3, sec. 16).

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. C. J. Taylor, Judge.

Suit to enjoin collection of tax on bank stock. Defendants answered the complaint and cross-complained. Decree for plaintiffs and cross-defendants. Affirmed.

Decree affirmed. Costs awarded to respondents.

Bert H. Miller, Attorney General, Ariel L. Crowley, Assistant Attorney General, and Ralph Litton, Prosecuting Attorney of Fremont County, for Appellants.

Exemption from taxation must be express and is never presumed. (Kootenai County v. Seven-Seven Co., 32 Idaho 301, 182 P. 529; State v. Leonardson, 51 Idaho 646, 9 P.2d 1028; Lewiston Orchards Irr. Dist. v. Gilmore, 53 Idaho 377, 23 P.2d 720.)

The title to an act must not be false, misleading or deceptive, and if so is pro tanto void. (Section 61-2476, I. C. A.; Turner v. Coffin, 9 Idaho 338, 74 P. 962; Katz v. Herrick, 12 Idaho 1, 86 P. 873; Jackson v. Gallet, 39 Idaho 382, 228 P. 1068.)

Dean Driscoll and Chase A. Clark, for Respondents.

The bank, as distinguished from a shareholder, is the real party in interest and the proper party to maintain this action. (Section 61-1406, I. C. A.; Hannan v. First Nat. Bank, (8th C. C. A.) 269 F. 527; Hills v. National Albany Exchange Bank, 105 U.S. 322, 26 L.Ed. 1052; Weiser Nat. Bank v. Jeffrey, 14 Idaho 659, 95 P. 23.)

The sections of chapter 159 of the 1933 Laws, on which respondents depend, do not offend article 3, section 16, of the Constitution as to title or subject matter. (State v. Jones, 9 Idaho 693, 75 P. 819; Garrett Transfer & Storage Co. v. Pfost, 54 Idaho 576, 33 P.2d 743-746; Achenbach v. Kincaid, 25 Idaho 768-776, 140 P. 529.)

The substitution of the income tax for the ad valorem tax on the stock of banks and all other corporations does not violate either section 2 or section 5 of article 7 of the Constitution, and is entirely within the legislature's power for:

(a) The legislature's power to exempt from taxation is plenary.

The proviso of section 5 of article 7 as to exemptions. (Independent School Dist. v. Pfost, 51 Idaho 240, 4 P.2d 893, 84 A. L. R. 820; Diefendorf v. Gallet, 51 Idaho 619-635, 10 P.2d 307.)

MORGAN, J. Givens, Holden and Wernette, JJ., concur. Budge, C. J., did not sit with the court nor participate in the opinion.

OPINION

MORGAN, J.

Respondents are banking corporations organized and existing under and by virtue of the laws of Idaho. On the second Monday of January, 1933, respondent, First Security Bank of Ashton, was, and for some time prior thereto had been, engaged in banking at Ashton in Fremont County, having a capital stock of the par value of $ 25,000, divided into shares of $ 100 each, which were paid up, issued and outstanding. It continued to conduct said business until November 27, 1933, when it sold its property and assets to respondent, First Security Bank of Idaho, which assumed and agreed to pay its liabilities. July 8, 1933, appellant, Humphries, assessor and tax collector of Fremont County, assessed the capital stock of First Security Bank of Ashton and entered it for taxation for the year 1933 on the personal property roll.

This suit was commenced by respondents to prevent the collection of the tax. Appellants answered the complaint and filed a cross-complaint which was answered by respondents. The pleadings were so framed that only issues of law were presented and motions were made by both parties for judgment on the pleadings. The motion of plaintiffs and cross-defendants was granted and that of defendants and cross-complainants was denied. A decree was entered dismissing the cross-complaint and enjoining the collection of the tax. This appeal is from the decree.

I. C. A., Title 61, Chap. 14 (secs. 61-1401 to 61-1407, incl.), prior to the 1933 legislative session, provided for the assessment of bank stock. Sec. 61-1401 contains the following:

"The shares of capital stock of any bank, existing by authority of the United States or of this state and located within this state, or of any building and loan association, trust company or surety and fidelity company organized under the laws of this state and doing business within this state, shall be assessed for taxation where such bank, company, association or other corporation is located and not elsewhere, as in the same manner and upon the same basis of actual value, and uniformly with all other property assessed in the county in which such shares of capital stock are assessed, said value to be determined as of the second Monday of January in each year at twelve o'clock meridian; . . . ."

Sec. 61-1403 provides that the shares of capital stock shall be assessed in the name of the owner thereof and entered on the personal property assessment roll under the name of the bank, company, association or other corporation. Sec. 61-1406 provides that all taxes levied on such shares shall be collected by the assessor "and paid by such bank, company, association or other corporation prior to the fourth Monday of December in the year such taxes are levied, and such bank, company, association or other corporation shall be liable therefor. If such tax is not paid upon demand by the assessor, the taxes, with interest thereon at the rate of eighteen per cent per annum from the time of such demand, together with a reasonable attorney's fee, may be recovered as in a civil action brought by the assessor." Sec. 61-1407 makes the owners of the shares liable to the company, association or corporation for the taxes so paid.

The 1933 session of the legislature (1933 Sess. Laws, Chap. 159, p. 239) amended certain sections of I. C. A., Title 61, Chap. 24, being the income tax law, and caused sec. 61-2402 thereof to provide that "the term 'corporation' includes associations, joint stock companies, insurance companies, trust companies, state and national banks, common law trusts, and associations of whatsoever kind organized or conducted for pecuniary profit, unless otherwise expressly provided in this chapter." It also caused sec. 61-2425 to provide:

"A tax shall be levied, assessed, collected, and paid for each taxable year upon:

"a. All corporations as defied in this chapter, except as herein otherwise expressly provided, for the privilege of carrying on and doing business within this state, in addition to license taxes levied under any law of this state and taxes levied upon the real and personal property of such corporations;

"b. All national banking associations doing business in this state pursuant to the authority conferred by Section 548 of Title 12 of the Code of Laws of the United States, formerly Section 5219 of the United States Revised Statutes as amended, and in conformity with the provisions contained in subdivision c of clause 1 of said section, and the state hereby adopts the method for taxing national banking associations numbered 4 in the first paragraph of said Section 548.

"1. That the tax so imposed, levied and assessed upon corporations and national banking associations shall be in addition to any license tax now or hereafter authorized by law, and taxes authorized to be levied upon the real or personal property of such corporations and national banking associations, but it shall be in lieu of any tax on the shares of stock of such corporations and national banking associations."

Sec. 21 of the act made the amendments applicable to 1933 and succeeding years.

The...