First National Bank of Missoula v. Bailey

Pembekton, C. J. — The verified statement which plaintiff claims in its complaint it furnished the assessor to aid him in ascertaining the number of shares of the stock of the bank, and in fixing the value at which the same should be assessed to the individual shareholders, is attached to the complaint as an exhibit and made part of the pleading. This paper is an assessment-list such as is required by law to be made out and returned to the assessor. It is printed, and on the back thereof is this endorsement: “ Assessment-list of property subject to taxation owned, claimed, or in possession or control of First National Bank at 12 M. on the first Monday of March, 1893,” and is sworn to by the cashier of the plaintiff bank. This list contains a list of the real estate, improvements thereon, capital stock, surplus and undivided px-ofits, with the amounts and value of all of said property, with a deduction of one-third of the value thereof claimed by the cashier. From an inspection of this tax-list, which is a part of the complaint, we think it cannot be held that it is simply a “ verified statement ” to aid [307] the assessor in assessing the individual shareholders, as claimed by plaintiff. Section 6 of the Revenue Law, approved March 6, 1891, is as follows: “Sec. 6. The stockholders in every bank or banking association, organized under the authority of this State or the United States, must be assessed and taxed on the value of their shares of stock therein, in the county, town, city or district where such bank or banking association is located, and not elsewhere, whether such stockholders reside in such place or not. To aid the assessor in determining the value of such shares of stock the cashier or other accounting officer of every such bank must furnish a verified statement to the assessor, showing the amount and number of shares of the capital stock of each bank, the amount of its surplus or reserve fund, the amount of investments in real estate, which real estate must be assessed and taxed as other real estate.” It may be conceded that the assessment of the capital stock of the bank to, and as the property thereof, was unauthorized in this case under said section. The bank had a right to object to this assessment. But it appears that it returned in its list of property for taxation its capital stock as property owned, possessed, or controlled by it. And, if it objected or desired to object to being thus assessed, it should have gone before the board of equalization and had the correction made. It is contended by appellant that the board of equalization had no authority to make this correction. It is the duty of this board to “ examine the assessment-book and adjust and equalize the valuation of the taxable property of the county.” We do not think it can be successfully contended that under the law this board has no authority to correct an assessment when property has been assessed to a party which he does not own, or when there has been a double assessment, or property exempt from taxation has been assessed, etc. The most that can be said in this case is that property has been assessed to plaintiff which it claims it does not own, and is therefore not liable for the taxes thereon. If such be the fact the plaintiff should have gone before the board of equalization for relief. In its complaint it gives no sufficient reason for not doing so. [308] This court held in Northern Pacific R. R. Co. v. Patterson, 10 Mont. 90, that a complaint, seeking to enjoin the collection of a tax on the ground of irregularity or illegality in the assessment thereof, which did not show that the complainant had first sought relief before the board of epualization, was bad on demurrer. (See also authorities cited in that case.) In Bourne v. Boston, 2 Gray, 494, Mr. Justice Bigelow says: “The plaintiff was not legally taxable for the property held by him as trustee, but he was taxable for the property of his ward in the city of Boston, and therefore a portion of the tax which in this action he seeks to recover back was rightly assessed to him. This would seem to briug the case within the principle, now well settled by the authorities, that, where a person is liable to taxation for personal and real estate in a city or town, his sole remedy, for an overtaxation caused by an excessive valuation of his property, or by including in the assessment property of which he is not the owner, or for which he is not liable to taxation, is by an application to the assessors for an abatement.” It seems to be the well-settled rule that, when the law has provided boards of equalization with power to adjust or correct assessments, parties being dissatisfied with the assessment of their property must apply to them in the first instance for relief, and that courts of equity will not interfere by injunction to restrain an irregular or illegal assessment until such relief has been sought and denied. In Stanley v. Supervisors of Albany, 121 U. S. 550, the supreme court says: “To tírese boards of revision, by whatever name they may be called, the citizen- must apply for relief against excessive and irregular taxation" when the assessing officers had jurisdiction to assess the property.” (See High on Injunctions, 3d ed., 485, and authorities cited.) Courts of equity are very reluctant to interfere by injunction with the collection of the revenue of the government, and will not do so except in cases when the party has no proper relief at law. The plaintiff having returned its list of property that it did own for taxation, and having included in such list property that it did not own, and for the taxation of which it was not liable, according to the well-settled rule, should have ap [309] plied to the board of equalization to correct said list, and for relief from the payment of the taxes of which it now complains, and, having failed so to do, it is not entitled to the equitable relief prayed for in its complaint. It is conceded by the appellant that its bank stock was subject to taxation, provided it was taxed as the property of the individual shareholders. It is not contended that any unjust discrimination as between this bank stock and other moneyed capital in the state has been made in the taxation thereof. It can only be contended that the assessment was illegal in that the capital stock was assessed to the bank instead, of the individual shareholders. To correct this irregularity it was the duty of plaintiff to apply to the board of equalization. (Meyer v. Rosemblatt, 78 Mo. 495; Oteri v. Parker, 42 La. Ann. 374; Board v. Cattle Co., 31 Pac. Rep. 268; Mead v. Haines, 45 N. W. Rep. 836.) We think no error has been shown in the action of the court below. The judgment is affirmed. Affirmed. De Witt, J., and Hunt, J., concur.