Stafford County Com'rs v. First Nat. Bank of Stafford

• Decision Date: 07 May 1892
• Citation: Stafford County Com'rs v. First Nat. Bank of Stafford, 30 P. 22, 48 Kan. 561 (Kan. 1892)
• Parties: THE BOARD OF COMMISSIONERS OF STAFFORD COUNTY v. THE FIRST NATIONAL BANK OF STAFFORD
• Court: Kansas Supreme Court

30 P. 22

48 Kan. 561

THE BOARD OF COMMISSIONERS OF STAFFORD COUNTY v. THE FIRST NATIONAL BANK OF STAFFORD

Supreme Court of Kansas

May 7, 1892

Error from Stafford District Court.

ACTION to recover certain taxes. At the October term, 1891, judgment for the defendant Bank. The plaintiff County Board brings the case to this court. The opinion states the material facts.

Judgment affirmed.

O. C Jennings, for plaintiff in error.

J. W Rose, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The First National Bank of Stafford is organized and doing a general banking business in the city of Stafford under the laws of the United States. On the 1st of March, 1890, the stockholders of that bank were assessed in accordance with the provisions of P 6868, General Statutes of 1889. Subsequently, the taxes against each of the stockholders of the bank were extended upon the tax-rolls of Stafford county. This action was commenced in the court below against the bank to recover $ 890.87, being the taxes of 1890 assessed against the stockholders of the bank, and also for the sum of $ 44.58, the penalties for the non-payment of the taxes. A general demurrer was filed to the petition, which was sustained by the court below. This ruling is complained of by the board of county commissioners.

A tax is not a debt in the ordinary acceptation of that term, and consequently a civil action will not lie for its recovery, except in those cases where the statute expressly confers the right to bring such an action, or where it impliedly confers such a right by omitting all mention of any method for the collection of the tax. There are decisions to the contrary, but the great weight of authority supports the rule that an action at law cannot be maintained to recover a tax for the collection of which adequate provisions are prescribed by statute. Mr. Cooley says:

"It sometimes becomes a question whether a tax can be regarded as a debt in the ordinary sense of that term, so that the ordinary remedies for the collection of debts can be applied to it. In general, it will be found that statutes imposing taxes make special provision for their collection, and do not apparently contemplate that any others will be necessary; but these may, nevertheless, fail; and the question then arises, whether the tax must fail also, or whether resort may be had by the state to such remedies as would be available to individuals to enforce demands owing to themselves. But instances have occurred of tax laws which provided for laying the tax, but made no provision whatever for collection. In such a case it may well be held that the legislature contemplated the enforcement of the tax by the ordinary remedies; and therefore, if the tax was assessed against an individual, that assumpsit would lie for its recovery. . . . But in general the conclusion has been reached, that when the statute undertakes to provide remedies, and those given do not embrace an action at law, a common-law action for the recovery of the tax as a debt will not lie." (Cooley, Taxation, 15. See also Black, Tax Titles, § 45; Blackwell, Tax Titles, § 335.)

Most of the decisions upon this question are collated in these text-books and reference is made to them under the sections referred to. It was decided in Lane Co. v. Oregon, 74 U.S. 71, 19 L.Ed. 101, that "the clauses in the several acts of congress, of 1862 and 1863, making United States notes a legal tender for debts, have no reference to taxes imposed by state authority." In the opinion delivered in that case by Chief Justice Chase it was said:

"We are the more ready to adopt this view, because the greatest of English elementary writers upon law, when treating of debts in their various descriptions, gives no hint that taxes come within either; while American state courts, of the highest authority, have refused to treat liabilities for taxes as debts, in the ordinary sense of that word, for which actions of debt may be maintained."

In this state the statute providing for assessing and levying taxes makes special provisions for their collection. Where...