Union Bank & Trust Co. v. Moore

MR. JUSTICE HOLLOWAY delivered the opinion of the court. In 1918 the assessor of Lewis and Clark county, acting pursuant to the provisions of Chapter 31, Laws of 1915, assessed to the Union Bank & Trust Company the shares of stock of the bank owned by its several stockholders. The bank paid the tax thereon under protest, and brought this action to recover the amount. The trial court rendered judgment in favor of the plaintiff, and defendant appealed. The first section of Chapter 31 above was declared to be unconstitutional in Dennis v. First Nat. Bank, 55 Mont. 448, 178 Pac. 580, and the entire Act was repealed by the seventeenth legislative assembly (Chap. 81, Laws of 1921), so that consideration of the Act is necessary only so far as it reflects upon the right of the county to retain the tax collected. The intention of the legislature in enacting the statute is [1] made apparent by the language employed. The purpose was to .simplify the assessment of bank property and devise a convenient means for collecting the tax, but the lawmakers overlooked the fact that the entire scheme ran counter to express provisions of the state Constitution. The defect in the Act so far as it related to the assessment of real property was pointed out in Dennis v. First Nat. Bank, above. The Act undertook to substitute the capital stock of the bank for the personal property belonging to the bank as the basis for assessment. Article XII of our Constitution deals with the subject “Revenue and Taxation.” Section 1 requires the legislature to provide regulations which shall secure a just valuation for taxation of all property except that otherwise specifically mentioned. Section 2 enumerates the property absolutely exempt from taxation and the other property which may be made exempt; and section 3 provides for the taxation of mining [136] properties and the net proceeds of mines. Section 7 provides: “The power to tax corporations or corporate property shall never- be relinquished or suspended, and all corporations in this state, or doing business therein shall be subject to taxation for state, county, school, municipal and other purposes, on real and personal property owned or used by them and not by this Constitution exempted from taxation.” Section 17 defines the term “property” to include moneys, credits, bonds, stocks, franchises, and all matters and things (real, personal and mixed) capable of private ownership, and then continues: “But this shall not be construed so as to authorize the taxation of the stocks of any company or corporation when the property of such company or corporation represented by such stocks is within the state and has been taxed. ’ ’ Section 7 prohibited the legislature from exempting the personal property of a bank from taxation, and section 17 forbade the taxation of the capital stock when the property represented by such stock is within the state and liable to taxation. This subject was considered fully in the case of Daly B. & T. Co. v. Board of Commrs., 33 Mont. 101, 81 Pac. 950, and further discussion is unnecessary. It appears from the record that the capital stock of the [2-4] Union Bank & Trust Company was represented by property within this state subject to taxation, and the fact, if it be a fact, that such property was not assessed for the year 1918 could not justify the assessment of other property not liable to taxation. (Clark v. Maher, 34 Mont. 391, 87 Pac. 272.) But counsel for appellant insist that, since the officers of the bank furnished to the assessor the information upon which the assessment was made as it was made, the bank is estopped to contest the validity of the tax. The information was furnished under the provisions of section 3, Chap. 31, above, and no one could contend seriously that it was not well within the power of the legislature to compel the officers of a bank organized under the laws of this state to furnish such information and to provide the penalty which it did provide for a failure to do so. But one who furnishes such information under compulsion is [137] not estopped by his act. There is not any element of estoppel present. Again, it is insisted that an officer of the Union Bank & Trust Company advised the assessor to assess the stock against the bank, and therefore the bank cannot complain; but the fact that the officer may have been mistaken as to the validity of the statute does not estop the bank to question the validity'of the tax. (Commercial Nat. Bank v. Board, etc., 168 Iowa, 501, Ann. Cas. 1916C, 227, 150 N. W. 704; City of Wilmington v. Ricaud, 90 Fed. 214, 32 C. C. A. 580.) The judgment is affirmed. Affirmed. Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.