Albuquerque National Bank v. Perea

O’Brien, J. The complainant, on the third day of November, A. D. 1888, filed his bill of complaint in the district court for the county of Bernalillo against the defendants, Jose L. Perea, sheriff and ex officio collector of taxes, and Clifford L. Jackson, district attorney, of said county, for the purpose of obtaining an injunction restraining them from enforcing the collection of certain delinquent taxes assessed to the complainant. The bill, in substance, alleges that complainant made due returns to the county assessor of all its property for taxation. That at such time it protested against the assessment of its property, to wit: its capital stock and surplus, at any higher rate of valuation than other property taxable in said county, and that it ought not to be assessed at its par value; that is, “that its stock could not be assessed at par, and its surplus at its full money value, because other property in said county and territory is not assessed at its full value.” That the assessor, disregarding such protest, assessed said property at its full'value; that, upon complainant’s appeal from the action of the assessor to the board of county commissioners sitting as a board of equalization, the assessment on its surplus was reduced to eighty-five per cent of its par value, whilst that of its capital stock was left unchanged; that its property valuation then stood as follows: Capital stock, $100,000; surplus, $10,000; total, $110,000. The bill proceeds: “That all other property in said county and territory is not assessed at nearly so high a valuation upon its actual value as said board of equalization assessed your orator’s said property. That the average valuation of other property in the hands of individuals and other corporations in said county and territory does not exceed seventy per cent, and that it is so assessed systematically and continuously by the said assessor of said county and said board of equalization, and no valuation estimated upon its. actual value of at least thirty per cent.” That bank stocks in a neighboring county are assessed at less than eighty-five per cent of their value; that such discrimination is inequitable, unjust, and unlawful; that the amount of taxes upon said equalized assessment is the sum of $2,189; that such amount, if lawfully and equitably assessed, would be reduced to $1,532.30, which sum complainant brings into court, and tenders to defendant Perea; that said defendant refused to accept the same, and threatened to levy upon complainant’s property to enforce the payment of the full amount so assessed. The bill continues: “Tour orator further alleges that, should it pay the sum so unlawfully demanded of it by virtue of said assessment, and bring suit at law for the recovery thereof as is illegal and unjust, such suit would be unavailing, for the reason that any judgment recovered by your orator against said county of Bernalillo or territory of New Mexico would be paid in warrants of-the said county and territory, which said warrants are not worth'their face válue, but are sold upon the market at a discount, there being no funds in the treasury with which to pay the same, if presented.” The bill then informs the court of the legal effect of a forced sale of complainant’s property. Then follows the prayer for a writ of injunction, etc. On November 29, 1889, complainant, by leave of the court, filed a supplemental bill, containing additional allegations, in substance as follows: That the shares of its capital stock can only be assessed to the individual owners thereof, and are not subject to assessment and taxation as the property of the bank; that a large portion of such capital stock is owned by nonresident heads of families; that a large portion of complainant’s capital stock is invested in government bonds, etc. Defendants demurred to some and answered other portions of the bill. The parties then filed a stipulation, in accordance with which complainant struck from its original and supplemental bills all allegations that the-assessor and board of equalization unjustly discriminated in the valuation and assessment of complainant’s property. Defendants then withdrew their answer, and stood upon their general demurrer to the-bills as amended. The demurrer was sustained, and. judgment entered dismissing the bill. The cause is in. this court by appeal from such judgment of dismissal. liability of Rfrtaxe'son"118 capital stock. Erroneous equ1tyment: . The appellant assigns as error:- First. The order of the court below sustaining defendant’s demurrer to the supplemental bill. Second. The demurrer did not answer the allegations that the assessment was upon complainant’s capital stock and surplus, and was in solido, and against complainant, and not against its-shareholders, and was, therefore, void. Third. The-demurrer did not apply to the original bill, and the-court, therefore, erred in dismissing the same. Fourth. Neither of the assessments for either of the years 1888'- or 1889, alleged to have been made, on the capital stock, surplus, and personal property of the complainant, against the complainant, and not against the-shareholders, is valid, but they are void on their face, and both the assessor and board of county commissioners sitting as a board of equalization were wholly without jurisdiction to make the same; and the pretended tax rolls referred to in complainant’s bills-confer no authority on the defendant collector to enforce the payment of said tax assessment. We-shall consider the four assignments together. The statutes of the territory (sections 2822-2825, Comp. Laws, 1884), impose the duty upon the assessor to make a proper-return of all taxable property in Ms county, and require all taxable inhabitants to furnish such assessor with a list of all their taxable property, duly verified. The complainant made and delivered to the assessor such list, embracing the property referred to in the bill, including the shares of its capital stock. A certain percentage was extended on all this property at its par value for the purpose of taxation. No -complaint was ever made to the assessor or to the county board of equalization that complainant did not own the-property so voluntarily listed. Its sole objection was that its property had been assessed higher than a similar property owned by other parties, and that such discrimination was illegal. The public officers had a right to assume that the bank had no other grievance to redress. It never hinted that it had been mistaken in listing the shares of its capital stock as its individual property instead of the property of its shareholders. In such case, when complainant had had ample opportunity to have its error corrected by the proper statutory.tribunal, it would be unfair to the public interests to allow it for the first time in its supplemental bill in this suit to set up as the basis of a bill in equity to restrain the collection of a tax its own mistake that .misled the revenue officers of the territory, and its subsequent negligence in failing to ask the proper tribunal to relieve it from the consequences thereof. Admitting that the shares of its capital stock should not be assessed in solido to it, but to the respective owners, according to interest, we hold that it can not be heard in this suit to complain of such erroneous assessment. Complainant, and not the public, should be made to suffer the consequences of such mistake. ^11 considering the other points presented by the record, to wit, that the property taxed was rated at a higher valuation than similar property owned by individuals and other private corporations, it does not appear that such property was valued higher than its market value, but that it was valued too high in comparison with similar property owned by others. "We hold that such inequality alone does not afford ground for equitable relief in the present case. It was complainant’s duty to apply to all the tribunals established by the laws of the territory to grant the desired relief. See chapter 73, Laws, 1887. Failing in this, equity will not restrain the collection of the tax on account of such errors. Meyer v. Rosenblatt, 78 Mo. 495. If the county board refused complainant the reduction demanded, an appeal lay to the territorial board, and, having failed to take such appeal in the manner prescribed by the statute, complainant is not entitled to the relief sought. The foregoing views are, in our opinion, a sufficient answer to all the substantial grounds of error presented by .the record. It follows that the judgment appealed from is affirmed. MoFie, Seeds, and Feeeman, JJ., concur.