Harn v. Woodard

• Decision Date: 19 April 1898
• Docket Number: 18,513
• Citation: 50 N.E. 33,151 Ind. 132
• Parties: Harn v. Woodard, Treasurer
• Court: Indiana Supreme Court

50 N.E. 33

151 Ind. 132

Harn v. Woodard, Treasurer

No. 18,513

Supreme Court of Indiana

April 19, 1898

Rehearing Denied July 1, 1898.

From the Monroe Circuit Court.

Affirmed.

W. P Rogers, H. C. Duncan, I. C. Batman, Louden & Louden and Foltz, Spitler & Kurrie, for appellant.

J. E Henley and J. B. Wilson, for appellee.

OPINION

Hackney, J.

The appellant Harn, sued the appellee Woodard, as treasurer of Monroe county, to enjoin the collection of taxes for the year 1897, upon certain running stock in a building association, not borrowed upon by Harn as the holder thereof. The lower court sustained a demurrer to the complaint, and that ruling presents the only question for review.

One of the questions urged by appellant is, that stock of this character is assessable to the building association, and not to the holder thereof. To this proposition are cited sections 8422, 8507, Burns' R. S. 1894. The first of these sections is as follows: "All corporate property, including capital stock and franchises, except where some other provision is made by law, shall be assessed to the corporation as to a natural person in the name of the corporation. The place where its principal office in this State is situated shall be deemed its residence, but if there be no principal office in the State, then such property shall be listed and taxed at any place in the State where the corporation transacts business." This section is general as to the character of corporations and stock to be listed and assessed under it, and, in the absence of any other provision, might be sufficiently comprehensive to include building associations; but section 8507, supra, supplies a specific provision as to the taxation of building associations. It is as follows: "Building, loan-fund and saving associations shall be listed and assessed in the following manner: Before the first day of June of each year, the secretary of every building, loan and savings association shall file with the auditor of the county in which such association was organized, a duplicate statement verified by said secretary, showing the amount paid into said association by shareholders upon shares of stock issued by it up to the first day of April preceding and then outstanding, and also the amount loaned up to said date, to shareholders, and secured by mortgage upon real estate listed for taxation. And the auditor shall deliver said statement to the proper assessor, who shall proceed to assess said association for taxation with the amount shown to have been paid into said association up to the first day of April upon outstanding shares of stock, less the amount shown by the statement to have been loaned to shareholders upon said mortgage security so listed for taxation, and neither said association nor the shareholders therein shall be liable to other taxation upon said shares of stock." Practically, the effect of this section is to list and assess against the association the difference between the amount paid in by shareholders and the amount loaned to them by the association. That is to say, the association is chargeable with the difference between receipts and loans. There is no provision by this section for assessments of any kind as against members of the association, borrowing or nonborrowing, and the clause closing said section, "and neither said association nor the shareholders therein shall be liable to other taxation upon said shares of stock," but is a declaration that the stock is not otherwise intended to be taxed.

As was held in Deniston v. Terry, 141 Ind. 677, 41 N.E. 143, this exemption was not intended as a limit upon the right further to tax the holders of stock, or those to whom building associations were indebted. In fact, the theory of this section is not the taxation of stock, but is, as to the building association, the taxation of the balance on hand or remaining to the credit of the association. As intimated in the case just cited, any other construction of the exemption would render it unconstitutional, as in violation of article 10, section 1 of the constitution, which provides that the only property which may be exempted from taxation is that for municipal, educational, literary, scientific, religious, or charitable purposes. In the cases cited it was further held, with reference to stock fully paid up, that it was taxable, not as stock, but as a credit in favor of the stockholder, and it was said in that case that there was no reason to distinguish between nonborrowing stock partly paid up or fully paid up. The conclusion that the holdings of a nonborrowing member should be taxed as a credit, and not as stock, is supported by the fact that building associations, in the form now known to the laws of the State, admit of the withdrawal at any time of the amount which the holder has paid into the association, together with the legal rate of interest upon the same. Section 4447, Burns' R. S. 1894. This theory has been further adopted with reference to paid-up or prepaid stock by the legislature of 1897. Acts 1897, p. 284.

It is quite clear, we think, that one who deposits his money with an association subject to call at any time upon reasonable notice, and who may receive the interest upon or earnings of the money so deposited, is a creditor to the extent of such deposit and interest or earnings, and, although his credit may be evidenced by a certificate of stock or other writing he is nevertheless a creditor, and his holdings, whatever called or...