In re First Nat. Bank of Hillsboro

• Decision Date: 05 December 1898
• Citation: 146 N.W. 1064,25 N.D. 635
• Parties: In re FIRST NAT. BANK OF HILLSBORO.
• Court: North Dakota Supreme Court

25 N.D. 635

146 N.W. 1064

In re FIRST NAT. BANK OF HILLSBORO.

Supreme Court of North Dakota.

Dec. 5, 1898.

Syllabus by the Court.

Under section 1927, Revised Codes 1895, an appeal will lie from a decision of the board of county commissioners, made while equalizing and correcting assessments in a controversy then pending before them, and judicial in its character.

Certain real estate belonging to a national bank, and in which a portion of its capital stock was invested, was assessed to the bank as other real estate in the district was assessed. At the same time the shares of stock in said bank were assessed to the individual shareholders, and, in equalizing the assessment of said shares and in fixing their value, the board of county commissioners refused to deduct from the capital of the bank the amount invested in real estate. Held, that such action constituted neither excessive nor double taxation.

Appeal from District Court, Traill County; Charles A. Pollock, Judge.

In the matter of the appeal of the First National Bank of Hillsboro from the County Board of Commissioners of Traill County, N. D. The bank was successful in the district court, and the county commissioners appeal. Reversed.

Wallin, J., dissenting.P. G. Swenson, of Hillsboro, for appellant. Carmody & Leslie, of Hillsboro, for respondent.

BARTHOLOMEW, C. J.

In 1896 a controversy arose in Traill county between the board of county commissioners, sitting to equalize and correct assessments, and the banks doing business in the county, relative to the proper equalization of the taxes upon bank stock. As a result of this controversy the said board, on the 11th day of July, 1896, passed a resolution and entered the same upon its records, which reads: “On motion all shares of bank stock was equalized to average sixty (60) per cent. on capital stock.” From the decision so entered the First National Bank of Hillsboro, plaintiff herein, appealed to the district court of said county. In the district court the plaintiff was successful, and the defendant brings the case here on appeal.

[1] When the case was reached for trial in the district court the defendant appeared specially, and moved to dismiss on the ground that the court had no jurisdiction, for the reason that it appeared by the notices of appeal that it was an attempt to appeal from the board of equalization, and that the statute allowed no appeal from such board. The denial of this motion is the first point for our consideration. We think the point cannot fairly be considered open in this jurisdiction since the decision in Pierre Waterworks Co. v. Hughes County, 5 Dak. 145, 37 N. W. 733. It was squarely raised in that case, discussed with great ability by Chief Justice Tripp, and the unanimous court held that the appeal would lie. That decision has never been reversed, modified, or questioned. Then, as now, appeals were allowed from all decisions of the board of county commissioners from matters properly before them. Political Code of 1877, § 46, c. 21; Revised Codes 1895, § 1927. But much learning was expended in the waterworks case in determining that the board of equalization was in fact the board of county commissioners. The statute then in force (section 28, chap. 28, Political Code of 1877) declared: “The board of county commissioners of each county shall constitute a board of equalization for the county, and said board or a majority of the members thereof shall hold a session of not less than two days,” etc. It was contended that there were two separate boards composed of the same persons, and that authority to appeal from decisions of the board of county commissioners did not include authority to appeal from decisions of the board of equalization. The opinion fairly met and refuted the contention; but our Legislature, as if to remove all doubt upon the subject, has enacted that “it shall be the duty of the board of county commissionersof each county, at its regular meeting in July of each year, to devote the first two days, or more if necessary, of such meeting to the proper equalizing and correcting of the assessment roll in its county.” Revised Codes 1895, § 1213. That section was in full force when the tax in question was assessed, and when the decision appealed from was entered. No such thing as a county board of equalization is recognized. The board of county commissioners equalize the taxes, and this they do in the same capacity in which they perform any other functions imposed upon them by law. It follows that the only ground upon which the motion to dismiss was based had no foundation in the law as it then stood.

But, notwithstanding the broad language of our statute, which declares that appeals may be taken from “all decisions” of the board upon matters properly before it, we must not be understood to give judicial sanction to the proposition as stated. It must have its limitations. It would not be proper for us to enter into an extended discussion as to what matters may not be appealed. We need only say that the powers of a board of county commissioners are very comprehensive, and extend to all ordinary matters in which the county, as such, is interested. They are in fact executive, administrative, political, and judicial or quasi judicial. Courts have no such extended powers. They are limited to the consideration of matters purely judicial in character. See sections 85 and 96, State Constitution. But if a party be wrongfully and unjustly taxed in violation of law (and that is what plaintiff claims in this case), then a wrong exists for which there must be a remedy in law in some form. The courts can take cognizance of it, independent of any action of the county commissioners, because it is inherently judicial in character; and, being a proper subject for judicial determination, the manner in which it may be brought before the court is entirely within legislative control. It is our duty to give force to the statute so far as it comes within the Constitution; and the facts that its enforcement may result in practical inconvenience, or in delay in collecting the revenue, furnish us no warrant for declaring the statute void, or limiting its operation. We have no such power. Those matters pertain to the Legislature exclusively. One further remark to avoid misapprehension. The word “decision” in the statute is not synonymous with “determination.” The board may determine upon certain proceedings in any matter properly before it, and in a general way, and about which there is no special controversy. Such a determination would not, we think, be appealable whatever might be the nature of the matter concerning which the determination was made. A decision presupposes a controversy, and, to be appealable, a decision must be upon a point concerning which some specific claim was made by the party taking the appeal, and which claim was denied, in whole or in part, by the decision of the board. In this case it sufficiently appears that there was a controversy between the banks in Traill county and each of them, on the one hand, and the county commissioners, on the other, concerning the taxation of the bank stock, the banks claiming that they were being unjustly and unlawfully taxed. This claim the board by its decision denied. The question was a judicial question. We hold that an appeal lies in this case, and this brings us to a consideration of the merits.

We are concerned only in ascertaining whether or not the holders of the stock of the plaintiff bank have been unlawfully taxed. Under section 1184, Revised Codes 1895, the bank stock is assessed against the shareholders, but the bank as agent for such shareholders is required to pay the tax. Hence the bank is the proper party plaintiff in this case. It is conceded that the capital stock of the plaintiff bank is $50,000, divided into shares of $100 each. Its surplus fund at the date of taxation was $10,000. The resolution from which the appeal was taken fixed the valuation of shares of bank stock at 60 per cent. on capital stock, or for the plaintiff bank at $60 per share. The book value of the stock, as shown by capital and surplus, was $120 per share. Its actual market value is not disclosed. What evidence there is on the point tends to show that it was a larger figure. It was not therefore to the disadvantage of the stockholders to value the entire stock at the amount of the capital stock. The evidence shows without contradiction that other moneyed capital in that taxing district was assessed at 60 per cent. of its face value. Thus far plaintiff has no just ground of complaint; nor do we understand that it would complain if that were all. But it is conceded that at that time the bank had invested in real estate over $43,000, and that this real estate was taxed to the bank as other real estate in the district; i. e., from 25 to 33 per cent. of its value. Under these facts plaintiff claims that its stock is being taxed in violation of the constitutional provision requiring uniformity of taxation (see section 176, State Constitution), and also of that portion of the national banking act (section 5219, U. S. Rev. St. [U. S. Comp. St. 1901, p. 3502]), which, while it permits the states to tax the stock of national banks in the hands of the shareholders, yet declares that such shares shall not be taxed higher than other moneyed capital. It is urged that the real estate owned by the bank represents so much of the capital of the bank, and, since it is taxed in its character of real estate, the amount invested therein must be deducted from the total capital of the bank, and the remainder only must be used in ascertaining the value of the stock for the purposes of taxation. To hold otherwise, it is claimed, necessarily results in taxing so much of the capital as is so invested twice-once as real property, and once as bank stock. This argument is specious. It may be true that if the state should elect to exempt the real estate...