The State ex rel. Johnson v. Merchants & Miners Bank
| Decision Date | 07 July 1919 |
| Parties | THE STATE ex rel. BERT JOHNSON, Collector, v. MERCHANTS & MINERS BANK et al., Appellants. THE STATE ex rel. BERT JOHNSON, Collector, v. CENTRAL NATIONAL BANK OF CARTHAGE et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. R. A. Pearson, Judge.
Judgment modified and affirmed.
J. W Halliburton, A. E. Spencer and Howard Gray for appellants.
(1) The evidence proves conclusively that during the years 1911 to 1915, inclusive, bank stocks were assessed in Jasper County at fifty per cent of their true value, while no other property in the county was assessed at more than forty per cent of its value; that banks, prior to the institution of these suits, paid all the taxes which should have been assessed against them had they not been assessed higher than other property according to value. Mercantile Trust Co v. Schramm, 190 S.W. 886; Iowa Cent. Ry. Co. v Board of Review, 157 N.W. 731; Ewert v. Taylor, 160 N.W. 797. (2) The evidence shows that it had been the practice, understanding and settled policy, for many years, for the assessor and the County Board of Equalization in Jasper County to assess the personal property of the county on a basis of forty per cent of its true value, and real estate on a basis of thirty per cent; that the State Board of Equalization, with the certificate of the county clerk before it, showing that real estate and personal property had been assessed on this basis, arbitrarily raised the assessment on bank stock to fifty per cent. This is unjust and an illegal discrimination, and it is no answer to say that the stockholders of the banks have no right to complain because their property was not assessed at its full value in money as required by law. Bank v. Treasurer of Lucas Co., 25 F. 749; Eminence Distillery Co. v. Henry Co. Board, 200 S.W. 347; Porter v. Langley, 155 S.W. 1042; Lively v. Railroad Co., 120 S.W. 852; Chicago, B. & Q. R. R. Co. v. Atchison County, 54 Kan. 781; Iowa Cent. Railroad Co. v. Board of Review, 157 N.W. 731; First Natl. Bank v. Chapman, 173 U.S. 205; First Natl. Bank v. Christianson, 118 P. 778; First Natl. Bank v. McBride, 149 P. 353; State ex rel. v. Osborn, 83 N.W. 357; Drew Co. Timber Co. v. Board, 187 S.W. 942; Barz v. Board of Equalization, 111 N.W. 41; Nevada-California Power Co. v. Hamilton, 235 F. 317. (3) The plaintiff claims that even though all the matters alleged in defendants' answer are true, inasmuch as this is an action at law for the taxes no equitable defense can be successfully made, and that the defendants are absolutely without any remedy. We claim all of the authorities are to the contrary. First National Bank v. Treasurer of Lucas Co., 25 F. 749; Nevada-California Power Co. v. Hamilton, 235 F. 317; Arosin v. London & N.W. Am. Mtg. Co., 83 N.W. 339; Board of Comrs. Garfield Co. v. Field, 162 P. 733; Porter v. Langley, 155 S.W. 1042; Raymond v. Chicago Union Trust Co., 207 U.S. 20; First Natl. Bank v. McBride, 149 P. 353; Chicago, B. & Q. R. Co. v. Atchison Co., 54 Kan. 781; First Natl. Bank v. Christianson, 118 P. 778. (4) We admit that the general rule is that where the laws of a State provide for a hearing before the State Board of Equalization and an appeal from its decision, the remedy is exclusive; but in this State there is no provision for the appearance before the State Board, for any hearing or an appeal from its decision in assessing bank stock, and the only remedy the taxpayer has is to enjoin the collection of the excess or, when sued for the taxes, to set up the facts as he would were he bringing a suit to enjoin. In this case the defendants are not in a position to bring suit to enjoin because until these suits were filed no effort was made or had been made to collect the excess, but there was a tacit understanding that the same would not be collected. In any event, in this State the old common law procedure of requiring the defendants to bring a suit to enjoin the collection of a tax and ask to have the collector's suit at law postponed until the court had heard the equity case, no longer prevails; but under our code all can be accomplished in the one suit by the equitable answer to the plaintiff's cause of action. Martin v. Turnbaugh, 153 Mo. 172; Swope v. Weller, 119 Mo. 556; Dwyer v. Rohan, 99 Mo.App. 120.
R. A. Mooneyhan and J. D. Harris for respondent.
(1) The State Board of Equalization is a creature of the Constitution of the State, being created by Section 18 of Article 10 of the Constitution. By that section it is made the duty of the board to adjust and equalize the valuation of real and personal property, among the several counties. This court has ruled that the board has the inherent power to proceed to the performance of these duties without legislative authority. Railway v. State Board of Equalization, 64 Mo. 294; State ex rel. v. Vaile, 122 Mo. 33. It is further provided in the foregoing section of the Constitution that the board shall perform such other duties as are or may be prescribed by law. The Legislature has by Section 11412 provided the plan of equalization to be pursued by the State Board of Equalization, in its performance of its duties. And as there must be an end to the matter of affixing values somewhere, it is a wise law that has made the finding of the State Board of Equalization final, so long as its proceedings are not vitiated by fraud or illegality. Mercantile Trust Co. v. Schramm, 269 Mo. 489, Missouri ex rel. Hill v. Dockery, 191 U.S. 165, 48 L.Ed. 133. (2) The Supreme Court of the United States, that the State Board of Equalization has the power to classify the various kinds of property for the purpose of fixing valuations thereon. Mercantile Trust Co. v. Schramm, 269 Mo. 489; Missouri ex rel. Hill v. Dockery, 191 U.S. 165, 48 L.Ed. 133; Copper Queen Consolidated Mining Co. v. Arizona, 206 U.S. 474. (3) The State derived its authority to assess national bank stock from Sec. 5219, U. S. R. S. 1878. (4) The Act of Congress does not make the tax on personal (or real) property the measure of tax on bank stock, but the tax on moneyed capital in the hands of individual citizens. Money invested in railroads, mining property and stocks, business corporations and savings banks do do not fall within the class of "moneyed capital" in the sense used in the Federal statute, and it has been held that these investments do not come into competition with national bank stock and national banking, within the prohibition. First National Bank of Aberdeen v. Chehalis County, 166 U.S. 445; Hepburn v. Carlisle Burrough School Director, 90 U.S. (23 Wall.) 480, 23 L.Ed. 112; First National Bank of Aberdeen v. Chehalis County, 166 U.S. 452, 41 L.Ed. 1075. (5) Mere over-valuation is no defense. State ex rel. v. Western Union Tel. Co., 165 Mo. 502. (6) Merely because witnesses testify that the defendants' properties have been assessed at a higher per cent of the true value thereof by the State Board of Equalization than other classes of property, is not sufficient to overcome the judgment and decision of the State Board of Equalization. And even though in the opinion of witnesses for the defendants their property was equalized at fifty per cent of its true value, while other classes of property were equalized at forty per cent of the true value thereof, in the opinion of such witnesses, still this evidence cannot avail the defendants here, since the solemn judgment of the State Board of Equalization can not be impeached by such evidence. State ex rel. v. Western Union Tel. Co., 165 Mo. 502; C., B. & Q. R. Co. v. Babcock, 204 U.S. 585; Coulter v. L. & N. R. Co., 196 U.S. 599; Williams v. Garfield Exchange Bank, 134 P. 863; Southern Spg. R. & C. Co. v. Board, 139 P. (N. M.) 159; Ray v. Armstrong, 131 S.W. 1039; People v. Pitcher, 156 P. 812; Hacker v. Howe, 101 N.W. 255; State ex rel. v. Hann. & St. J. Ry. Co., 101 Mo. 127; Ward v. Board of Equalization of Gentry County, 135 Mo. 309; Stanley v. Supervisors, 121 U.S. 535; Mercantile Trust Co. v. Schramm, 269 Mo. 489. (7) The State Board of Equalization in performing its duty, acts judicially, and its judgments are not open to collateral attack. State ex rel. v. Western Union Tel. Co., 165 Mo. 517; Western Union Tel. Co. v. State ex rel. Gottlieb, 190 U.S. 426, 47 L.Ed. 1122; State ex rel. v. Vaile, 122 Mo. 47; State ex rel. v. Neosho Bank, 120 Mo. 161; State ex rel. v. Baker, 170 Mo. 383; Hann. & St. J. Ry. Co. v. State Board of Equalization, 64 Mo. 294.
OPINION
In Banc
These are two actions to recover delinquent taxes. They are consolidated and tried together below, and are so presented here. The first is a case against a state bank, and the second case is against a national bank.
It is claimed that the State Board of Equalization raised the assessed value of bank stock in Jasper County from forty per cent of their value to fifty per cent of their value, whilst said State Board of Equalization left other personal property stand at an assessed valuation of forty per cent of the value.
The tax bills in these cases were based upon the assessed valuation as certified to the county by the State Board of Equalization. The suits cover delinquencies for the five years prior to their institution. During these years and for some time prior, the banks had been paying on a forty per cent assessed valuation, instead of the fifty per cent assessed valuation as fixed by the State Board. This is the claim of the defendants. As a fact they paid about three-fourths of their taxes each year and these suits are to collect the unpaid portions for the five years next before the institution of these actions.
The tax bills were based upon the valuation fixed by the State Board of...
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