Chowan County v. . Commissioner of Banks

ClahKSON, J". The question involved: Under the circumstances of this case did the Commissioner of Revenue, after the assessment was regularly made and no appeal taken in accordance with the statute, have authority to strike out an assessment of the value of the “corporate excess” of the capital stock of the Citizens Bank, made by the State Board of Assessment and certified to Chowan County, and thereby prevent the collection of taxes levied thereon by the county? We think not. Sections 600 and 603 of the Machinery Act of 1929 (Public Laws 1929, chap. 344), provide the method by which the State Board of Assessment shall assess the value of stock in banks and other corporations. Provision is made and time limit set in which the taxpayer may, if not satisfied, appeal to the Superior Court and then to the Supreme Court. In the present case there was no appeal taken by the bank in accordance with the statute. On 1 August the excess $19,375 was certified to Chowan County, N. C. Section 603(6) of the act, supra, is as follows: “The State Board of Assessment shall, on or before the first day of August of each year, certify to the register of deeds of the county in which such corporation, limited partnership or association has its principal office or place of business, the total value of the capital stock of such corporation, limited partnership or association as determined in this section; and such corporation, limited partnership or association shall pay the county, township, city or town tax upon the valuation so certified.” (Italics ours.) In Mfg. Co. v. Commissioner's of Pender, 196 N. C., at p. 748, citing numerous authorities, we find: “A taxpayer who does not exhaust the remedy provided before an administrative board to secure the correct assessment of a tax cannot be heard by a judicial tribunal to assert its invalidity. Our State decisions to the extent they have dealt with the subject are in full approval of the principle, holding that a taxpayer must not only resort to the remedies that the Legislature has established, but that he must do so at the time and in the manner that the statutes and proper regulations provide.” An appeal in the above case was taken to the Supreme Court of the United States, and in Garysburg Manufacturing Company v. Board of Commissioners of Pender County, 280 U. S., 52, is the following: “28 October, 1929. Per Curiam: The appeal is dismissed for the reason that the judgment of the State court sought *675 hereto be reviewed was based on a non-Eederal ground adequate to support it,” citing authorities. Blackmore v. Duplin County, 201 N. C., 245; Dower Co. v. Burke County, 201 N. C., 318; Hooker v. Pitt County, ante, 4. The State Board of Assessment, “after careful consideration,” fixed the value for taxation at $19,375. In R. R. v. Lenoir County, 200 N. C., at p. 496, the following is stated: “We have held that while a board of county commissioners cannot with retroactive effect change a tax which it has purposely imposed in the way the law prescribes, it may correct an erroneous entry upon the minutes so that the record shall, in the language of the law, 'speak the truth’ concerning the tax. R. R. v. Reid, 187 N. C., 320; R. R. v. Forbes, 188 N. C., 151; R. R. v. Cherokee County, 195 N. C., 756.” Oliver v. Highway Commission, 194 N. C., 380; R. R. v. Cherokee County, 194 N. C., 781. There was no erroneous entry in the present case. It is mandatory on the bank to pay the taxes on the shares of stock. Section 600(6) of the act, supra, is as follows: “The taxes assessed upon the shares of stock of any such banking associations, institutions or trust companies shall be paid by the cashier, secretary, treasurer, or other officer or officers thereof, and in the same manner and at the same time as other taxes are required to be paid in such counties, and in default thereof such cashier, secretary, treasurer, or other accounting officer as well as such banking association, institution or trust company shall be liable for such taxes and in addition thereto for a sum equal to ten per cent thereof,” etc. Plaintiffs contend that the attempt by the defendant- and the Commissioner of Revenue to strike out the valuation of the stock was not only unauthorized but expressly prohibited by statute. The contention is correct. The plaintiffs contend: “Under the law all property must be listed, and its value assessed for taxation as of 1 April, of each year, and the taxpayer is charged with and required to pay taxes on its value as of that date, without regard to subsequent events. If a farmer lists a mule or a barn and has its value assessed as of 1 April he is not relieved of paying taxes thereon because the mule thereafter dies or the barn burns in December, and if a bank lists its shares of stock and has their value fixed by the proper authorities as of 1 April, there is no reason why it should be relieved of taxes when subsequent adverse conditions cause it to close its doors in December and render the stock worthless.” We think this contention correct. *676 Chowan County Tax Accountant, received the following letter: “17 February, 1931. Mr. R. D. Dixon, Tax Accountant, Edenton, N. C. Dear sir: Referring to certificate of assessed value of shares of stock of banks as of 1 April, 1930. Will you kindly strike from said certificate the excess value of the Citizens Bank, Edenton, $19,375. Yours very truly, A. J. Maxwell, Commissioner. OST/MB. „ by Assistant Commissioner.” The defendant contends that the Commissioner of Revenue was authorized to strike from the tax books the excess value, and cites Machinery Act 1929, supra,, Art. 2, part sec. 200: “The Commissioner of Revenue shall be the chairman of the said board and shall, in addition to presiding at the meetings of the board, exercise the functions, duties and powers of the board when not in session.” Part of section 202: “The State Board of Assessment shall exercise general and specific supervision of the systems of valuation and taxation throughout the State, including counties and municipalities, and in addition they shall be and constitute a State Board of Equalization and Review of valuation and taxation in this State.” The contentions cannot be sustained. In Caldwell County v. Houghton, 195 N. C., 62, it is held that action by the State Board of Assessment on the complaint of a taxpayer made in May, 1927, changing values as of May, 1926, on which taxes had been levied for 1926 was unauthorized by statute. The Court saying: “We understand it not to have been the intention of the General Assembly to confer upon the State Board of Assessment original jurisdiction tó hear and determine at all times indiscriminate complaints by individual taxpayers of the over valuation of their property.” We can find no power giving the Revenue Commissioner authority to wipe from the tax books this assessment, made regularly in accordance with law from which no appeal was taken. Markham v. Carver, 188 N. C., 615. In Commissioner of Banks v. Mills, ante, at p. 512, is the following: “We have recently held that the Commissioner of Banks must sue in his individual name and that the failure to do so may be cured by amendment.” In the present case he was not sued in his individual name and this must be cured by amendment. For the reasons given, the judgment of the court below is Affirmed.