State v. Citizens' State Bank

• Decision Date: 29 March 1918
• Docket Number: No. 19187.,19187.
• Citation: 274 Mo. 60,202 S.W. 382
• Parties: STATE ex rel. and to Use of BAY, Collector of Revenue, v. CITIZENS' STATE BANK.
• Court: Missouri Supreme Court

202 S.W. 382

274 Mo. 60

STATE ex rel. and to Use of BAY, Collector of Revenue, v. CITIZENS' STATE BANK.

No. 19187.

Supreme Court of Missouri, Division No. 1.

March 29, 1918.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by the State, on the relation and to the use of John T. Bay, Collector of Revenue for Shannon County, against the Citizens' State Bank. Judgment for plaintiff, and order denying motion for new trial and arrest of judgment, and defendant appeals. Affirmed.

This action was brought in the name of the state, by John T. Bay, collector of the revenue in Shannon county, Mo., to recover of defendant the sum of $127.69, being the balance due as taxes, assessed in June, 1913, against the stockholders of the Birch Tree State Bank, the latter having formerly done a banking business in said county. The tax statement filed with petition indicates on its face that the taxes sued for were assessed against the Birch Tree State Bank, a Missouri incorporated bank, but the assessment list for 1913 was offered in evidence by respondent and it shows that the cashier of said Birch Tree State Bank made out and certified to the assessor of said county the statement required by section 11357, R. S. 1909, showing the list of stockholders in said bank, with the name of each inserted, and the number of shares owned by them respectively. Said statement gives the total number of shares held by the 14 shareholders named as 100 of the face value of $100 each, making $10,000. The amount of reserve funds, undivided profits, premiums, or earnings, and all other values belonging to said corporation are mentioned therein as amounting to $6,064. The value of the real estate is placed in said statement at $4,000, and the total value of the remaining property at $16,064. The assessor, as shown by the list, deducted from the last-named amount the value of the real estate, which left the total net value of the stock of said bank (at $120.64 per share) $12,064. The net value of the stock was then assessed at $6,032, and the real estate aforesaid assessed at $1,600.

It is fair to assume that the taxes levied on above real estate were paid by the Birch Tree State Bank, as they are not included in the tax statement filed with the petition. Said tax statement likewise shows that J. W. Holden and W. A. McIntire, two of the stockholders of said Birch Tree State Bank, owned four shares each in said bank; that on January 19, 1915, they each paid the taxes on their assessment of stock, amounting to $5.52; that the remainder of the taxes due on stock assessment, after deducting the $11.04, paid by above stockholders, was $125.17. The latter sum, plus $2.52 interest, constituted the balance of $127.09 sued for in this action.

It appears from the record that on October 21, 1913, W. I. Marshall, P. D. Gum, John F. Budd, J. W. Holden, and E. T. Pate, representing themselves as directors and stockholders of the Birch Tree State Bank, sold and conveyed to the defendant bank the assets of said Birch Tree State Bank. The defendant, in the contract of sale, assumed and agreed to pay all amounts due from said Birch Tree State Bank to its depositors and all other creditors, "except stockholders from their stock representing the capital of the Birch Tree State Bank." The contract recites that W. I. Marshall and the other directors and stockholders representing the Birch Tree State Bank warrant that said bank has no other liabilities than those mentioned in Exhibit B, attached' to and made part of said contract of sale; and that they will hold the defendant harmless from the payment of any claims that may be brought against it by any of the creditors of the Birch Tree State Bank, other than those mentioned in said Exhibit B. The taxes sued for are neither specifically mentioned, nor referred to, in either the contract of sale or exhibits attached thereto.

C. L. V. Randall, a stockholder in defendant bank, was sworn as a witness in behalf of respondent. He testified that the defendant bank never bought the capital stock of the Birch Tree State Bank, and that it never assumed any of the liabilities that might have grown out of the capital stock; that the only liabilities which his bank did assume were set out in the contract, and that all such liabilities were paid. Such other facts, if any, as may be deemed important, will be referred to in the opinion.

At the conclusion of above testimony, the appellant interposed a demurrer to the evidence, which was overruled, and judgment entered by the trial court on May 15, 1915, for $127.69 and costs, in favor of respondent and against defendant. The latter in due time tiled its motion for a new trial and motion in arrest of judgment. Both motions were overruled, and the cause duly appealed by it to this court.

S. A. Cunningham, of Eminence, for appellant. Jno. H. Chitwood, of Ellington, and L. B. Shuck, of Webb City, for respondent.

BAILEY, C. (after stating the facts as above).

I. At an early date the General Assembly of the state of Maryland passed an act authorizing the taxation of national banks in said state. In McCulloch v. State of Maryland, 17 U. S. (4 Wheat.) loc. cit. 436, 437, 4 L. Ed. 579, Chief Justice Marshall, in construing the above act, said:

"We are unanimously of opinion that the law passed by the Legislature of Maryland, imposing a tax on the bank of the United States, is unconstitutional and void. This opinion does not deprive the states of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional."

Subsequently, Congress passed that which is now known as section 5219, United States Compiled Statutes 1901, chapter 3, vol. 3, p. 3502, which reads as follows:

"Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the state within which the association is located; but the Legislature of each state may determine and direct the manner and place of taxing all the shares of national banking associations located within the state, subject only to the two restrictions, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state, and that the shares of any national banking association owned by nonresidents of any state shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either state, county, or municipal taxes, to the same extent, according to its value, as other real property is taxed." See Act June 3, 1864, c. 106, § 41, 13 Stat. 111; also Act Feb. 10, 1868, c. 7, 15 Stat. 34.

In Home Savings Bank v. Des Moines, 205 U. S. loc. cit. 516, 517, 27 Sup. Ct. 575, 51 L. Ed. 901, Mr. Justice Moody, in behalf of the Supreme Court of the United States, said:

"The right to tax the shares of national banks arises by congressional authority, but the right to tax shares of state banks exists independently of any such authority, for the state requires no leave to tax the holdings in its own corporations. The right of such taxation rests upon the theory that shares in corporations ale property entirely distinct and independent from the property of the corporation. The tax on an individual in respect to his shares in a corporation is not regarded as a tax upon the corporation itself." (Italics ours.)

The law as announced in the above authorities has been clearly recognized and followed from an early date in this state, as shown by the following cases: Lionberger v. Rowse, 43 Mo. 67; First National Bank of Hannibal v. Meredith, 44 Mo. 500; City of Springfield v. First Nat. Bank of Springfield, 87 Mo. 441; State ex rel. v. Catron, 118 Mo. loc. cit. 284, 285, 24 S. W. 439; City of Stanberry v. Jordan, 145 Mo. loc. cit. 377, 378, 46 S. W. 1093; State ex rel. v. Bank, 160 Mo. loc. cit. 647, 648, 61 S. W. 676; State ex rel. v. Shryaek, 179 Mo. 424, 78 S. W. 808; State ex rel v. Bank of Carterville, 180 Mo. 717, 79 S. W. 943; State ex rel. Wilson v. Miners' Bank of Joplin, 181 Mo. 1, 79 S. W. 1196; State ex rel. v. Bank of Tipton, 196 Mo. 516, 93 S. W. 1134; State ex rel. v. Lesser, 237 Mo. 310, 141 S. W. 888; State ex rel. Campbell v. Brinkop, 238 Mo. 298, 143 S. W. 444; National Bank of Commerce in St. Louis v. Allen (D. C.) 211 Fed. loc. cit. 746, 747; National Bank of Commerce v. Allen, 223 Fed. loc. cit. 475, 476, 139 O. C. A. 20.

Considered in the light of foregoing authorities, no recovery can be sustained on the facts disclosed in the tax bill filed with the petition, because it appears therefrom that the assessment of 1913 was made against the Birch Tree State Bank, and not against the stockholders thereof.

II. While the tax bill, ty virtue of section 11498, R. S. 1909, is prima facie evidence that the amount claimed in the suit is just and correct, yet it is not conclusive in respect to these matters. State ex rel. v. Vogelsang, 183 Mo. loc. cit. 22, 81 S. W. 1087; State ex rel. v. Cunningham, 153 Mo. 642, 55 S. W. 249; State ex rel. v. Fullerton, 143 Mo. 682, 44 S. W. 741. The assessment list, referred to in the preceding statement, was introduced in evidence by respondent, and it shows that the assessment on which the taxes in controversy are based was properly made against the stockholders of the Birch Tree State Bank, and...