State v. Shryack

• Decision Date: 10 February 1904
• Citation: 179 Mo. 424,78 S.W. 808
• Parties: STATE ex rel. MILLER, Collector, v. SHRYACK.
• Court: Missouri Supreme Court

78 S.W. 808

179 Mo. 424

STATE ex rel. MILLER, Collector, v. SHRYACK.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

TAXATION—BANKING COMPANIES—PROPERTY SUBJECT—SHARES OF STOCK— AGAINST WHOM TAXED.

1. Laws 1866, p. 134, c. 2, § 27, provided that persons owning stock in corporations should not be required to deliver to the assessor a list thereof, but the president thereof should deliver to the assessor a list of all the shareholders. Section 28 required the corporation to pay the tax assessed against the shareholders. Laws 1871-72, p. 90, § 35, modified section 27 so as to provide that the property of corporations should be assessed as the property of individuals, and to require the president of the corporation, in making the list of the shareholders, to state the actual cash value of the stock and property of the corporation, which value should be assessed as personal property. Act April 1, 1891 (Laws 1891, p. 195), modified section 35, and required the value of the real estate and fixtures to be deducted from the estimate of the value of the stock, and made the real estate and fixtures taxable against the corporation direct, and permitted the stockholders to show any impairment of the value of the stock. Act April 9, 1895 (Laws 1895, p. 242), modified the preceding provisions by providing that the property of corporations should be assessed and taxed in their corporate names, by requiring the president of the corporation to merely furnish to the assessor a list of all shares of stock therein, and by making the value of the real estate only taxable against the corporation. Held, that under the law of 1895 the real estate of banking companies must be assessed against the corporation, the personal property must not be assessed at all, and the shares of stock must be assessed in the names of the shareholders.

Appeal from Circuit Court, Johnson County; Wm. L. Jarrott, Judge.

Action by the state, on the relation of Franklin Miller, collector of Johnson county, against M. C. Shryack. From a voluntary nonsuit taken on the court sustaining a demurrer to the evidence, plaintiff appeals. Affirmed.

J. W. Suddath, for appellant. Jas. A. Kemper, for respondent.

MARSHALL, J.

This is an action, under section 987, Rev. St. 1899, by the collector of Johnson county, to collect from the defendant, as a stockholder, director, and trustee in liquidation of the Farmers' & Merchants' Bank of Warrensburg, the sum of $385.11, the taxes for 1899, that were assessed against the bank. After the usual and necessary averments in ordinary tax cases, the petition alleges that on April 24, 1899, the bank dissolved, leaving these taxes unpaid, and that the defendant was a director and a stockholder, owning 10 shares, of the par value of $100 each, and that he received $1,000 as his share of the capital stock upon the dissolution, and that, as such stockholder and trustee, the sum of $30,000 of the money of the bank passed through his hands to the stockholders, and hence, under the statute, he is liable for these taxes. The answer admits that the bank was a corporation organized under the laws of this state, and that the defendant was a director and stockholder, as charged, and then denies generally the other allegations in the petition. Upon the trial the plaintiff introduced the back tax bill, which was as follows:

"Back Tax Bill.

"Warrensburg, Mo., April 9, 1900.

"State of Missouri, County of Johnson—ss.: I, Franklin Miller, Collector of the revenue within and for the County of Johnson, in the State of Missouri, do hereby certify that the following amounts of back taxes remain delinquent in favor of the several funds for the several years, on the personal property assessed against and in the name of Farmers' and Merchants' Bank, as hereinafter set forth, to wit:

                                    Year 1899
                Valuation                      20.115
                Valuation .......................................  $ 50 29
                Co. Tax .........................................    70 41
                Co. Int. and Sinking F'd.........................    00 00
                Wbg. Twp. Int. Tax...............................    60 35
                Com. Road Tax....................................    30 18
                Comm. School Tax.................................   144 83
                Ch. House Tax....................................    00 00
                                                                   _______
                   Total ........................................  $356 06
                Penalty .........................................    14 24
                Collector's Com. ................................    14 81
                                                                   _______
                   Total .......................................   $385 11
                

"In witness whereof, I have hereunto set my hand at the City of Warrensburg, in said County and State, this 9th day of April, 1900. Franklin Miller, Collector of the revenue within and for the county of Johnson, State of Missouri."

The case was tried upon the following agreed statement of facts: "For the purpose of the trial of this case, and to save time, it is admitted by the defendant that Franklin Miller was at the time of the filing of the petition in this case, and now is, the legally commissioned, qualified, and acting collector of the revenue within and for said county of Johnson and state of Missouri; that on the 24th day of April, 1899, the said corporation, the Farmers' & Merchants' Bank, dissolved; that at the time of the dissolution of the said corporation, the Farmers' & Merchants' Bank, there were moneys and funds on hand belonging to said corporation, subject to the payment of its debts, and after the payment of all debts, except this alleged debt, for distribution among the stockholders, in the aggregate sum of thirty thousand ($30,000) dollars, and that after the payment of all debts against said corporation, except this, there was the said sum of $30,000 for distribution among the stockholders; that said sum passed through the hands of the board of directors of said corporation, of which said board said defendant, M. C. Shryack, was at said time a member, and one of the trustees in winding up the business of said corporation; that said corporation and this defendant has at all times failed to pay, and still fails to pay, the alleged taxes sued for in this action, and that the alleged taxes here sued for have never been paid. Employment of attorney as alleged in petition admitted."

The defendant demurred to the evidence; the court sustained the demurrer; the plaintiff took a nonsuit, with leave, and, after proper steps, appealed to this court.

Counsel for defendant says that the case "was and is defended upon the theory that an assessment of the shares of stock cannot be made against the bank in which they are held, for the reason that they are not the property of the bank, but belong to the individual shareholders." The assessment in this case is not preserved in the record. The back tax bill, however, recites that it is for taxes "on the personal property assessed against and in the name of Farmers' & Merchants' Bank." And the petition alleges that "there were assessed and levied upon the moneys, capital stock, furniture and fixtures, and personal property, of said Farmers' & Merchants' Bank," etc., the taxes sued for. It is apparent, therefore, that the assessment and levy was direct upon the money, capital stock, and personal property of the bank, in the name of the bank, and not upon the shares of stock of the bank in the names of the stockholders. The question, therefore, is whether such an assessment and levy is valid under the laws of this state. A brief review of the development of the law in this state as to the taxation of property owned by banks and other corporations will serve to explain the law as it now stands upon the statutes of this state.

By sections 27 and 28 of chapter 2, p. 134, Laws 1866 (Sess. Acts Adj. Sess. 1865), it was provided as follows:

"Sec. 27. Persons owning shares of stock in banks and other incorporated companies, taxable by law, are not required to deliver to the assessor a list thereof; but the president, or other chief officer of such corporation, shall deliver to the assessor a list of all shares of stock held therein, and the names of the persons who hold the same.

"Sec. 28. The taxes assessed on shares of stock embraced in such list shall be paid by the corporations respectively, and they may recover from the owners of such shares the amount so paid by them, or deduct the same from the dividends accruing on such shares; and the amount so paid shall be a lien on the shares respectively and shall be paid before a transfer thereof can be made."

These sections were a part of the act approved March 19, 1866, which revised the whole revenue laws of the state. The law remained the same until the act approved March 30, 1872 (Laws 1871-72, pp. 80 to 137), was enacted. That act also revised the revenue laws of the state. Section 27 of the act of 1866 was omitted, and section 35, p. 90, was enacted in lieu thereof, as follows:

"Sec. 35. The property of manufacturing companies and other corporations named in chapter sixty-nine of the General Statutes of Missouri, and of all other corporations, the taxation of which is not otherwise provided for by law, shall be assessed and taxed as the property of individuals. Persons owning shares of stock in banks or any joint stock institution or association doing a banking business or any insurance company, whether of fire, marine, life, health, accident or other insurance, incorporated under or by any law of the United States or of this state, are not required to deliver to the assessor a list thereof; but the president or other chief officer of such corporation shall, under oath, deliver to the assessor a list of all shares of stock held therein, and the names of the persons who hold the same, and shall also state the actual cash value of such stock and all the property belonging to such corporations. In estimating the value of such...