Paul v. McGraw

• Citation: 3 Wash. 296,28 P. 532
• Parties: PAUL, ASSESSOR, v. MCGRAW ET AL. SAME v. FURTH.
• Decision Date: 09 December 1891
• Court: United States State Supreme Court of Washington

28 P. 532

3 Wash. 296

PAUL, ASSESSOR, v. MCGRAW ET AL.

SAME v. FURTH.

Supreme Court of Washington

December 9, 1891

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Petitions for mandamus by Frank Paul, as assessor of King county, state of Washington, to compel John H. McGraw, Lester Turner, and Jacob Furth, officers of national banks, to furnish said county assessor with a list of their shareholders, for purposes of taxation. Plaintiff obtained judgment, and defendants appeal. Reversed.

Preston, Carr & Preston, for appellants.

John F. Miller and Andrews & Barnes, for respondent.

STILES J.

The appellants in these two cases are officers of the First National Bank and of the Puget Sound National Bank, of Seattle, respectively. The respondent is the assessor of King county, who, in pursuance of his duties in listing property for taxation in his county, in the month of June last demanded of the appellants an inspection of a full and correct list of the names and residences of all the shareholders of the said banks, and the number of shares held by each shareholder, together with such information as the said officers had at their command as to the value, or tending to show the value, of said shares of stock. The assessor's demand was refused; whereupon he procured from the superior court of King county an alternative writ of mandamus requiring the bank officers to furnish the desired lists of shareholders. The respondents to the writs duly appeared, and, after making a motion to dismiss the proceeding for want of jurisdiction in the court, which motion was denied, and after demurring to the application on the grounds of want of jurisdiction, and that the application did not state sufficient facts, which demurrer was overruled, they answered, admitting the plaintiff's allegations concerning the bank's incorporation, but denying the facts which were alleged as tending to show the necessity the plaintiff was under to obtain the desired information from them; and, further, that at a time in the year 1891, and within the time provided by law for listing property for taxation, in response to a demand of the plaintiff therefor, they had furnished to plaintiff a statement, verified by oath, giving the amount of paid-up capital stock, the amount of surplus or reserve fund and the amount of the undivided profits of said banks. The court found the facts to be as pleaded in the application and also found that the affirmative matter pleaded by the respondents was true; and that they had in all respects complied with the requirements of section 21 of the act of March 9, 1891, (general revenue law;) but it found as a matter of law that the respondents must furnish the list of shareholders, and made the writs peremptory. These appeals are from the final judgments thus rendered.

Writs of mandamus can be issued only in cases where the law specially enjoins the performance of an act as a duty resulting from an office, trust, or station, and then only where there is no other plain and adequate remedy. Code 1881, § 691. The respondent contends that under the letter of section 5210 of the Revised Statutes of the United States the appellants were in duty bound to give him inspection of the lists as demanded. Section 5210 is as follows: "The president and cashier of every national banking association shall cause to be kept at all times a full and correct list of the names of and residences of all the shareholders in the association, and the number of shares held by each, in the office where its business is transacted. Such list shall be subject to the inspection of all the shareholders and creditors of the association, and the officers duly authorized to assess taxes under state authority, during business hours of each day in which business may be legally transacted." It was therefore the appellants' legal duty to exhibit the lists, if it was necessary to the prosecution of respondent's official labors in making assessments. At this point, however, the appellants raise the objection that they are, with respect to this duty, officers of the United States, and therefore not subject to mandamus by state courts. No authority is cited for this position, and we do not admit it. In our judgment they are simply officers of the banking association, with whom the United States has no relations whatever, except as limited by the acts of congress.

It is next claimed that, inasmuch as section 5210 has not been supplemented by legislation of the state empowering some taxing officer to make the demand, it is inoperative, especially in view of the alleged scheme to tax the capital, surplus, and undivided profits found in sections 8 and 21 of the act of 1891. By the territorial revenue law, (Code 1881, § 2849,) it was provided that the principal accounting officer of each banking association should list the shares of the association, giving the assessor the name of each person owning shares, and the amount owned by each. The foregoing provision was repealed by the revenue act of March 28, 1890, and the latter act required the accounting officers of all banks to furnish to the assessor verified statements showing the amount and number of the shares of the capital stock of their banks, the amount of their surplus or reserve funds, and the amount of their legally authorized investments in real estate. Again, the act of 1890 was repealed by the act of 1891; but the act of 1891 contained substantially the same provision as that cited above from the act of 1890, with the exception that the paid-up capital, the surplus or reserve fund, and the amount of undivided profits are to be declared. It thus appears that under the act of 1891 there is no law on the statute-books of the state supplementing section 5210, and, if the power to enforce the demand of the assessor existed at all, it must be conferred by the act of congress alone, and the appellants' claim in so far well founded.

Was it, then, necessary that there should be state legislation before the assessor could avail himself of the list required to be exhibited by section 5210? As conclusive authority upon this point, we are cited to the case of Waite v. Dowley, 94 U.S. 527. Speaking of a statute of the state of Vermont which required the cashiers of national as well as other banks to transmit to the clerks of the several towns of the state in which any stockholder of such bank should reside a true list of the names of such stockholders, together with the amount of money actually paid in on each share on the 1st day of April of each year, the court said, in answer to the argument that the action of congress was final and could not be supplemented by the states: "The act of congress, however, was merely designed to furnish to the public dealing with the bank a knowledge of the names of its corporators, and to what extent they might be relied on as giving safety to those dealing with the bank. It had no such purpose as the Vermont statute, and was wholly deficient in the information needed for the purposes of taxation by the state, as conceded to it by the act of congress itself. Some legislation of Vermont was therefore necessary to the proper exercise of the rightful powers of the state, and, so far as it required this list, was not in conflict with any provision of the act of congress." It will be observed that this case does not hold that the town-clerks of Vermont could not have availed themselves of the list provided for by the act of congress for whatever it was worth, and, when the court said it was "necessary to the proper exercise of the rightful powers of the state' that there should be further legislation, we construe the meaning to have been that, because, by a literal compliance with section 5210, but little of real value to the taxing officers would be learned by them, further state legislation was both necessary and proper, in order that not only the names of the stockholders and the amount of their respective holdings might be known, but that the value of each share might be authoritatively fixed. We hold, therefore, that the point above discussed is not well taken.

Nor do we think that the absence of an express statutory direction to the assessor to procure these lists would defeat his right to them, under the view of the act of 1891 urged upon our consideration by the appellants, viz., that it was the design of the act to tax the shares in the hands of the stockholders, and the capital, surplus, and profits in the hands of the banks; for the bare lists required to be exhibited by the act of congress would aid him very materially in discovering who the stockholders are, and where they reside.

Under these holdings, then, did the state court have jurisdiction of the subject-matter of the proceeding? Clearly, we think the answer must be in the affirmative. The fourth subdivision of section 5136, Rev. St. U.S., in defining the powers of national banking associations, declares that they shall have power "to sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons." And section 5198 expressly provides that suits, actions, and proceedings may be had against these associations in any state, county, or municipal court in the county or city where they are located, such courts having state jurisdiction in similar cases. Certainly, if the corporation can be sued, its officers may be. We find but two instances in all of the sections of the Revised Statutes where a proceeding relating to these banks is required to be in a federal court, viz sections 5237 and 5239, where the government is itself dealing with them; and in section 5234 the receiver of a national bank appointed by the comptroller of the currency is authorized to sell an...