Lemly v. Commissioners of Forsyth

Sm-itb, 0- J. In strictness the only point presented is the legal capacity of the commissioners' to reverse and annul their own former erroneous action, not in reforming the las list,-but in-the attempted exoneration of the intestate from a-part of the taxes for which he is liable thereon,, and thus to put out of the way an impediment and hindrance to their collection. It certainly requires neither reference nor argument to' sustain so self-evident a preposition as the right (and we may add duty) of the board when the error is discovered, and more especially when committed by the intestate’s own representation, to correct i-t and avert its consequences,, and as little objection lies to-the fair and deliberate manner in which- the board retraces its steps- If the re-cinding order is itself regular and proper, and we concur with- the referee and his-'Honor in SO' holding,, the issues into which the cause expanded on reaching the superior court,, and which are considered and disposed of by- the referee, are outside of, and foreign- to the matter in- controversy apparent upon the record-. If the action of the board in withdrawing the attempted exoneration is upheld,, the effect is simply to take away that defence, leaving to the plaintiffs full liberty to contest the legality of the tax, as before, when in process of enforcement by the collector- Rut as the parties choose to bring up and submit-to adjudication- the merits of the defence to the levying of the tax, we proceed to consider the case in this aspect. ■■ The findings of the referee, affirmed by the court, are conclusive of the facts, and- the cl-ear. and comprehensive pre *382 •■sentation -of the case and the points of law involved by the report relieve us of the necessity -of any extended discussion in the premises. We fully assent to the proposition, that the deviation from duty of the appraisers, in reducing the valúe of the town lots is not an infringement of the proviso in the act of oongress (U. S. Rev. St., § 5219), which prohibits legislative ■discrimination against shares in national banks, and favoring any other kind of moneyed capital, and still less so when" the alleged discrimination extends only to real estate, which cannot in any sense be considered as “ moneyed capi- toi” within the meaning and tpurpose of the statute.. The law is settled by several adjudicated cases. Cummings v. National Bank, 101 U. S. 153; Pelton v. National Bank, Ib., 143, and especially National Bunk v. Kimball, 103 U. S., 732, where the previous decisions are reviewed. See Cooley Tax., 394. Nor do the exemptions, the result of special contract in the charter of the dissolved state banking corporations, interfere with the exercise'of the taxing power by the states when the levies are equal and uniform, as far as they can be made so, and this is required in th-e state constitution as to all forms of property, while the act of congress only demands equality and uniformity in the ta-xes levied upon moneyed capital. “ But the fact,” we cite from the work of -Judge Cooley, “ that two banks by their charter, are specially taxed, will not preclude the taxation of the shares in the national banks by general law; neither are the shares to be excluded from taxation, because some other classes of .moneyed capital are exempt from taxation by law of limited application,” Lionberger v. Rouse, 9 Wall., 468; Tappan v. Merch. Nat. Bank, 19 Wall., 490; Provident Ins. Co. v. Boston, 101 Mass., 595. The purpose .of the present-proceeding is not to secure a reduction of the valuation put upon the stock to that put upon other-personal property, but to obtain a release from *383 the payment of any tax whatever, and as the referee decides, an injunction even to restrain the collection of an illegal excess of tax will not be granted unless the party pay or tender so much as is justly due. This is held in Nat. Bank v. Kimball, supra, and by this court in London v. Wilmington, 78 N. C., 109. While to adjust the subject matter in controversy arising out of the report, and the action of the court upon the plaintiff’s exceptions, we have given our opinion upon all questions deemed material, we repeat the only one directly adjudicated is the legality of the rescinding order. There is no error, and the judgment must be affirmed. No error. Affirmed.