The Bank of Santa Fe v. Buster

• Decision Date: 01 January 1893
• Parties: THE BANK OF SANTA FE v. JOHN C. BUSTER, as Sheriff of Haskell County, et al
• Court: Kansas Supreme Court

31 P. 1094

50 Kan. 356

THE BANK OF SANTA FE v. JOHN C. BUSTER, as Sheriff of Haskell County, et al

Supreme Court of Kansas

January 1, 1893

Error from Haskell District Court.

ACTION to restrain the collection of a certain tax. A decree granting a temporary injunction in behalf of the plaintiff Bank was reversed by the district court, and it brings error. The facts are stated in the opinion.

Judgment affirmed.

Milton Brown, and H. F. Mason, for plaintiff in error:

It is obvious that the statement of facts in the petition is not so full and explicit as to meet the demands of good pleading but, upon an objection of this character, the plaintiff is certainly entitled to have his pleading construed as favorably as upon demurrer; in other words, its statements are taken as true, whether well pleaded or not. Park v Tinkham, 9 Kan. 615; Stewart v. Balderston, 10 id. 148, and cases cited.

In National Bank v. Fisher, 45 Kan. 726, this court has held that in the case of a national bank the assessment of the entire stock in solido is void. The same reasoning that forbids a lumping assessment against a national bank in any state, under our statute, forbids it as to a state bank. It is clear that, upon the first point, the petition is sufficient, unless it fails by reason of the principle of estoppel laid down in Winfield Bank v. Nipp, 47 Kan. 744--the bank being concluded by the action of its own officer in making its return.

The case at bar, however, differs from the Cowley county case just referred to in this, that the cashier of the plaintiff bank in the present case made his return under a mistake of law and fact in May, 1890, and, upon discovering his mistake sought in the following month to be allowed to correct his statement, making his application to the county board, but was refused opportunity to do so. The real parties in interest, the stockholders in the bank, ought not to suffer by the innocent mistake of the cashier, who took the earliest opportunity to offer to correct it. But whatever may be the merits of this first objection to the tax, the fact that the tax was in amount excessive, and that the fair, just and equitable amount of the assessment was not over $ 2,000, instead of $ 5,000 as returned, in the absence of some equitable estoppel, certainly entitles plaintiff to the relief asked. The error of the cashier in making the return ought not to conclude the bank, because it is alleged to have been occasioned by a mistake of fact.

D. D. Temple, and Joseph Rosenthal, for defendants in error:

The petition does not allege that at any time J. L. Kennard, agent of plaintiff (he swears to be such agent in the affidavit attached to the petition), tendered to the board a list of the stockholders of said bank with the amount and value of stock chargeable to each; hence the question of the assessment in solido is not raised, and the case comes under the rule laid down by this court in the case of Winfield Bank v. Nipp, 47 Kan. 744.

The petition nowhere alleges that the value of the stock of all the stockholders is less than $ 5,000; the county commissioners had only to act upon a request for a reduction, not for a change of assessment, and within the rules of assessing banks under the statute, they promptly and properly refused to take any action upon a return made under oath.

Where property is assessed at too high a value, it is no ground for enjoining the collection of a tax, the remedy being by an application to the board of equalization. Small v. City of Lawrenceburg, 27 N.E. 500.

VALENTINE, J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Haskell county, by the Bank of Santa Fe against the sheriff, treasurer and county board of said county, to perpetually enjoin the defendants from collecting or enforcing certain taxes levied against the plaintiff. The petition of the plaintiff, as filed in the district court, omitting title and signature, reads as follows:

"PETITION.

"The Bank of Santa Fe, plaintiff in the above-entitled action, for its cause of action alleges: That plaintiff is, and at all times herein referred to has been, a corporation organized and existing under the laws of the state of Kansas, and doing business as a banking corporation in the city of Santa Fe, in the county of Haskell, in the state of Kansas; that defendant John C. Buster is the sheriff of Haskell county, Kansas; that defendant John G. Michaels is the county treasurer of Haskell county, Kansas; that on the 3d day of May, 1890, J. L. Kennard, the cashier of said plaintiff, made a personal-property statement to W. P Claybourn, the assessor of the township in which the said city of Santa Fe was situated, said city being a city of the third class, of the amount of personal property for which said bank was liable to be taxed; that in making such statement, said J. L. Kennard, through a mistake of law and of fact, instead of making a statement of the names of the stockholders in said bank, and the amount of stock held by each, as...