Dutton v. Citizens' National Bank

The opinion of the court was delivered by AlXjEN, J.:

The principal question in this case is as to the right of the holder of stock in a national bank to deduct his indebtedness from the value of the stock, where he has no other credits from which such deduction can be made. In support of this contention two claims are made: (1) That the term “credit,” as defined in ¶ 6847, includes stock in a national bank; (2) that §5219 of the Revised Statutes of the United States prohibits taxation of national-bank shares at a greater rate than other moneyed capital in the hands of the individual citizens of the state, and that, as individual citizens are allowed to deduct their debts from their credits of a certain class, like deductions must be allowed holders of national-bank stock. We will consider these questions in the: order stated.

I. The statutory definition of the word “credit,” as given *452 in ¶ 6847, is as follows: “The term ‘credit/ when used in this act, shall mean and include every demand for money, labor, or other valuable thing, whether due or to become due, but not secured by lien on real estate.” The clause under ■which exemption is claimed, being the last part of ¶ 6851, .reads as follows:

'“Debts owing in good faith by any person, company or -corporation may be deducted from the gross amount of credits belonging to such person, company, or corporation, provided such debts are not owing to any person, company or corporation, as depositors in any bank, or banking association, or with any person or firm engaged in the business of banking in this state or elsewhere, and the person, company or corporation making out the statement of personal property to be ..given to the assessor, claiming deductions herein provided for, shall set forth both the amount and nature of his debts sought to be deducted, but no persoD, company or corporation shall be entitled to any deduction on account of any bond, note or obligation given to any mutual insurance company, or ■deferred payment or loan for a policy of life insurance, nor «on account of any unpaid subscription to any religious, literary, scientific or benevolent institution or society: Provided, That in deducting debts from credits, no debt shall be ■deducted where said debt was created by a loan on government bonds or other nontaxable securities.”

Paragraph 6846 provides “That all property in this state, ffeal and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed by this act.” By the various articles in chapter 107, on “ Taxation,” provision is made for the assessment and taxation of the vari-<ons classes of property. Article 6, as amended by chapter 84 of the Laws of 1891, provides for the assessment of stock in banks and other corporations. No hint is contained in any part of this article that such stock is to be treated as a ■credit in the hands of the stockholder. Only the net value «of the shares is required to be returned. Banking and other ■corporations are allowed, in determining'the value of their -shares, to deduct all indebtedness, all liabilities of every kind atnd character, not only from their credits, but from their *453 assets of every description. The value of these shares is made up by summing up all real and personal property, moneys, credits, stocks in other companies and effects of every character and description, and deducting therefrom lands which are specifically taxed, and all debts, obligations, and liabilities, no matter how secured or of what kind. The net value of a share is only the amount that can be realized from the property of the company after its obligations are paid. It is true that, in making the assessment, neither the assessor, nor the bank nor the stockholder is required to go through the process of determining the value of the stock in this manner, but it is fixed at its true value, which can, of course, only be determined from the amount of its assets and liabilities. It is apparent that the holders of stock in banks and other corporations have a material advantage over private individuals, in that they are, in effect, allowed to deduct from the value of all their assets, real property alone excepted, all their indebtedness of every kind and character. In this respect, moneys invested through the medium of corporations have a very great advantage over that invested by individuals in personal property. Money and all credits secured by liens on real estate are also taxable under the statute in the hands of individuals, without deduction. In respect to such property, there is discrimination in favor of banks and other corporate capital. Merchants and manufacturers, by the terms of article 5, are required to return for taxation the average value of merchandise held by them. It matters not whether the owner is indebted for any or all of such stock, taxes must be paid on it without deduction.

The statutory definition of the word “credit” must be construed in the light of all of the provisions of the statute on the subject of taxation. It is by no means clear that stock in a corporation is a demand for money, labor, or other valuable thing, either present or future. The stockholder has no right to demand from the corporation any sum whatever, or any valuable thing whatever. ‘ If the concern is prosperous, and the board of directors so determine, he may be entitled *454 to receive dividends, bat he may not demand them until they are declared. On a general winding up of the business of a corporation, he may be entitled to receive more or less than the face value of the shares, but he has no right to demaud any part of it so long as the corporation is prosecuting its business under its charter. If the venture proves disastrous, he may be forced to pay losses rather than to receive profits. We think that shares of stock are rather certificates of an interest in an enterprise, and in the property, of every description, subject to the liabilities of the corporation, rather than a demand for anything. It is a strained construction of the word “credit,” or of the word “demand,” to hold it to include stocks in a corporation. The decisions to which our attention is called which seem to give countenance to such a definition as is contended for by the bank we think are to be viewed rather as applications of the substantial requirements of the United States statute than as affording a definition of the word “credit” as used in the laws of this state. But, if the construction of the statutory definition of the word “credit” contended for by the defendant in error is correct, the question arises whether the legislature had the power to grant banking corporations such favors. Section 2 of article 11 of the constitution is as follows:

“The legislature shall provide for taxing the notes and bills discounted or purchased, moneys loaned, and other property, effects, or dues of every description, (without deductiou) of all banks now existing, or hereafter to be created, and of all bankers; so that all property employed in banking shall always bear a burden of taxation equal to that imposed upon the property of individuals.”

*455

nauonaSbank stock.

*454 In providing for the taxation of banks, the legislature seems to have always disregarded this provision of the constitution, which requires that the value of all property and of all .credits of every description held by banks shall be taxed without deduction. The legislature provides only for taxing the net worth of the bank, thereby greatly reducing the amount of property to be taxed. If this provision of the *455 constitution had been followed by the legislature, there would be ample ground for contending that the banking capital was discriminated against; yet, as the fundamental law of the land so requires, there could be no question as to the validity of laws framed in accordance with the provisions of the section of the constitution quoted, so far as it affected corporations created under the laws of this state. A question, however, would arise under the act of congress referred to, as to whether the taxation of shares in national banks was at a higher rate than that on moneyed capital in the hands of individuals. We conclude, therefore, that the word “credit,” as used and defined in the chapter 7 . of the general statutes on the subject of taxation, does not include shares of stock in banking and other corporations.

II. Section 5219 of the Revised Statutes of the United States provides:

“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.”

The claim made in this case, and the others argued and submitted at the same time with it, of a right to deduct individual indebtedness from the value of national-bank stock, by the owner, is a novel one. So far as our knowledge extends, such right has never before been claimed, but the shares of stock *456 in national and state banks have always been taxed without such deductions. Counsel have industriously presented the decisions, not only of the supreme court of the United States bearing on the question, but those by the courts of last resort in sister states. As this is a question of the construction of an act of congress, the decisions of the supreme court of the United States are controlling, and it becomes our duty to carefully examine the construction given to the section under consideration by that tribunal. In the case of Hepburn v. School Directors, 23 Wall. 480 , it was held that shares in national banks may be valued for taxation for county, school, municipal and local purposes, at an amount above their par values, and that such shares are not exempt from taxation, although, by the statute of Pennsylvania, “All mortgages, judgments, recognizances and moneys owing upon articles of agreement for the sale of real estate are made exempt from taxation in that county, except for state purposes.” And in the opinion in that case the court says: “It could not have been the intention of congress to exempt bank shares from taxation because some moneyed capital was exempt.” In Adams v. Nashville, 95 U. S. 19 , it was held that “ The act of congress approved June 3, 1864, was not intended to curtail the power of the states on the subject of taxation, or to prohibit the exemption of particular kinds of property, but to protect the corporations formed under its authority from unfriendly discrimination by the states in the exercise of their taxing power.” Under the laws of New York, taxpayei’3 had the right to deduct their just debts from the value of personal property owned by them, and the balance only was subject to taxation. The legislature in 1866 provided for taxing shares in state and national banks, subject only to a deduction of the value of the real estate held by the bank, which also was subject to taxation directly.

In the case of People v. Weaver, 100 U. S. 539 , it was held that this operated as a discrimination against the banks, and imposed taxation on banking capital at a greater rate than on other moneyed capital. It is easy to perceive that the laws *457 in that state made a very substantial discrimination against capital invested in banking; and the court held that the section under consideration includes the valuation of the shares as well as the rate of percentage charged thereon. In Supervisors v. Stanley, 105 U. S. 305 , the court again had this same statute under consideration, and it was held that, so far as the laws of New York discriminated against the holders of shares in national banks, by refusing to them a deduction from-the value of their stock equal to the amount of their indebtedness, while such deduction was allowed to the individual owners of all kinds of other personal property, it was in conflict with the act of congress and void to that extent, but that the statute was valid except so far as it refused to the owners of national-bank stock the right to deduct their debts from its valuation. The case of Evansville Bank v. Britton, 105 U. S. 323 , goes one step further. Mr. Justice Miller, in delivering the opinion, among other things, says:

“A distinction is attempted to be drawn between the Indiana statute and the New York statute, because the former permitted the deduction of the taxpayer’s indebtedness to be made from the valuation of his personal property, while in Indiana he can only deduct it from his credits, and undoubtedly there is such a difference in the laws of the two states; but if one of them is more directly in conflict with the act of congress than the other, it is the Indiana statute. In its schedule, the subject of taxation from which the taxpayer may deduct his bona fide indebtedness is placed under two heads, as follows: ‘1. Credits or money at interest, either within or without the state, at par value. 2. All other demands against persons, or bodies corporate, either within or without this state. Total amount of all credits.’ The act of congress does not make the tax on personal property the measure of the tax on bank shares in the state, but the tax on moneyed capital in the hands of the individual citizens. Credits, money loaned at interest and demands against persons or corporations are more purely representative of moneyed capital than personal property, so far as they can be said to differ. Undoubtedly there may be much personal property exempt from taxation without giving bank shares a right to similar exemption, because personal property is not necessarily mon *458 eyed capital; but the rights, credits, demands and money at interest mentioned in the Indiana statute, from which bona fide debts may be deducted, all mean moneyed capital invested in that way.”

In Boyer v. Boyer, 113 U. S. 689 , in a case arising under the laws of Pennsylvania, it appeared that

“The laws of Pennsylvania exempted from local taxation for county purposes railroad securities, shares of stock held by stockholders in corporations which were liable to pay certain taxes to the state, mortgages, judgments, recognizances, moneys due on contracts for sale of real estate, and loans by corporations which were taxable for state purposes when the state tax should be paid. The pleadings in this case admitted in detail large amounts of exempted property under these heads in the state. Held that, under these circumstances, this constituted a discrimination in favor of other moneyed capital against capital invested in shares in national banks, which was inconsistent with the provision in §5219, Revised Statutes, that the taxation by state authority of national-bank shares shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state.”

In the opinion in that case, it is again said that a partial exemption would not take away the power to tax bank shares, but much stress is laid on the fact that the exemption covered a very large part of the moneyed capital of the state.

In the case of Mercantile National Bank v. City of New York, 121 U. S. 138 , it was held that the facts that, under the laws of the state of New York, trust companies and savings banks were taxed in a different manner from national banks, and that deposits in savings banks were exempted from state taxation, and that bonds of the city of New York were also exempt, were not sufficient to show a substantial discrimination against national banks. The court in this case reviewed the previous decisions at some length, and adhered to the general proposition enunciated in the former cases, that, in order to invalidate the tax, there must be a substantial discrimination against national-banking capital.

The case of Whitbeck v. Mercantile Bank, 127 U. S. 193 , *459 arose under the laws of the state of Ohio. It appeared that the statute of that state allowed an owner of moneyed capital, other than shares in a national bank, to have a reduction equal to his bona fide indebtedness made from the amount of the assessments of such moneyed capital, but made no such allowance on the value of shares in a national bank. It was held that owners of bank stock were entitled to the same deduction of the amount of their indebtedness as in the case of other moneyed capital.

It appears to us that the principle declared and maintained in all of the cases decided by the United States supreme court is, that there must not be a substantial discrimination against capital invested in national banks; that the question of minor exemptions is a matter of state policy, with which that •court will not interfere, and that, when only some minor and inconsiderable portions of capital are relieved from the burden of taxation, the validity of taxes levied on national banks will not be thereby affected.

The supreme court of the state of Indiana, in the very elaborate and well-considered opinion in the case of Wasson v. National Bank, 8 N. E. Rep. 97, review the decisions on the question, and take judicial notice of the fact that the other forms of moneyed capital, from which debts may be deducted, constitute a large and material portion of the moneyed capital of the state, and conclude that national banks are therefore entitled to a similar reduction. Following the decisions of the supreme court with reference to the same statute, it was said that, in that state, indebtedness could be deducted from the amount of notes, judgments and credits of every description due from any person, company, or corporation, whether drawing interest or not. In this state, the deduction cannot be made from the amount of judgments, or any moneys secured by lien on real estate. Money on deposit subject to demand is also taxable, as well as all corporate stocks.

We have also examined the cases of McAden v. Commissioners, 97 N. C. 355 ; National Bank v. City Council, 52 N. W. Rep. (Iowa) 334; Miller v. Heilbron, 58 Cal. 133 ; Rug *460 gles v. Fond du Lac, 10 N. W. Rep. (Wis.) 565; Peavey v. Greenfield, 9 Atl. Rep. (N. H.) 722. None of these cases goes to the length it would be necessary to reach in order to affirm the judgment of the district court. That of Miller v. Heilbron, supra, seems to reach the furthest limit of any. The political code of California provided that, “in assessing a solvent debt, not secured by mortgage or trust deed, a reduction therefrom shall be made of debts due a bona fide resident of the state.” It will be seen that in California the only exception is debt secured by mortgage or trust deed. On the other hand, the case of Bressler v. County of Wayne, 32 Neb. 834 , decided and reported first in 25 Neb. 468 , and finally disposed of on a rehearing, holds that the statute of that state, which allows all persons, companies, or corporations, except banks, to deduct the amount of their debts from the gross amount of their credits, is valid, and that, under their statute, persons owning stock in national banks cannot deduct their indebtedness from the value of their shares. That case takes more extreme ground than we are required to take in this in order to deny the stockholders the right claimed.

The credits referred to in our statute are but one of many kinds of moneyed capital, if, indeed, they can be regarded as capital at all. It would seem to have been the view of the legislature that only those unsecured credits which were not in general investments for profit, but would in the ordinary •course of honest dealing be applied, as soon as received, to the extinguishment of current debts and obligations, should be subject to the deduction, and that in fact such credits represented no capital whatever where there was a corresponding debt, to the payment of which they of right should be devoted. We cannot, in this case, take judicial notice of the fact that such credits constitute a large or even material part of the moneyed capital of the state. On the contrary, we do take judicial notice of the fact that debts secured by liens on real estate, money invested in corporate stocks of all kinds *461 and descriptions, including railroad, banking, insurance, loan and trust companies, and all the multifarious forms of moneyed securities, moneys on deposit subject to call, and other forms of invested capital, constitute the great bulk of the moneyed capital in this state.

2- oauS validsututeT The case of National Bank v. Fisher, 45 Kas. 726 , is cited on the part of the bank as decisive of this case. That case, however, merely decides that the assessment of the stock, in solido, against the bank itself, is invalid, and that the individual stockholders are entitled to the same deductions from the assessment upon their shares as other taxpayers owning moneyed capital are allowed. We are entirely satisfied with the opinion in that ease, but it does not reach the question here presented. Upon this branch of the inquiry, we conclude that §5219 of the Revised Statutes of the United States is not violated, and that neither owners of stock in national banks nor any other banks, or corporations of any kind, have the right to deduct their indebtedness from the valuation of their shares of stock.

*462

8' ma?ntah?ei.not

*461 Two minor questions are presented in the case. It appears that 40 shares of the stock were held by the bank, and that these were assessed to the bank. In the absence of any showing that, in ascertaining the value of a share of stock in the bank, the full thousand shares were considered as outstanding, we think this assessment wrong. The owners of the remaining $96,000 of capital stock would be entitled to all the property of the company, and the 40 shares held by the bank would simply amount to just as much as a liability as they would as an asset. The cases of Coal Co. v. Emlen, 44 Kas. 117 , and Gibbins v. Adamson, 44 id. 203 , are cited in support of the proposition that the assessor had no right to change the assessment after it was made and returned, and that the board of equalization had no power to add to the amount of taxable property returned by the assessor. In reply to that, we may say that this is an action of injunction, *462 in which the bank appears as plaintiff; and it can only be maintained for the purpose of restraining an illegal tax, no matter what the irregularity in the mode of assessment may have been. We are not prepared to say that the board of equalization had no. power to strike out the deduction of debts claimed by the stockholders, but to which we have held they are not entitled. With reference to the “double assessment,” there are no averments in the petition from which it can be inferred that this property had not escaped taxation for the year 1892,. while in the hands of the same parties. If it had so escaped,, the double assessment was right, and the collection of the tax, even though about to be irregularly placed on the tax roll, will not be enjoined.

The judgment is reversed, and the cause remanded for further proceedings in accordance with the views above expressed.

All the Justices concurring.