Jefferson County Savings Bank v. Hewitt , 112 Ala. 546 ( 1896 )

COLEMAN, J.

The plaintiff, the appellant, sued to recover back certain money alleged to have been paid to the defendant as tax collector, under duress, to prevent the sale and sacrifice of property which had been levied upon by the defendant as tax collector. The case made by the abstract presents the legality of the assessment of the real estate of the plaintiff. It is contended by appellant, first, that the assessment was not made according to a proper construction of the statute ; and second, that if the statute authorized the assessment, it is unconstitutional and void. The second count of the complaint avers, and the facts show, that plaintiff is a body corporate, incorporated under the laws of Alabama, and engaged in the business of banking, with a capital stock of $150,000, divided into fifteen hundred shares. The bank furnished the tax assessor with a list of the shares, the name and residence of each shareholder, the market value of each share and par value, the annual dividends declared, the amount of surplus, and the undivided profits not included in the surplus, as required by statute. The evidence showed that in the prosecution oí its busi-1 ness, the bank had become the owner of real estate of \ the value of about eighty thousand dollars ; that the market value of the shares of stock was based upon the value of the real estate of plaintiff, and it was the real estate, included with other property, that gave the shares their assessed value ; that the plaintiff paid the taxes assessed against the shares of stock of each - shareholder, but refused to pay the assessment upon its real estate. The question then is, whether the statute authorized an assessment for taxes, both upon the shares, j held by the shareholder, and upon the real property j owned by the bank. Prior to the adoption of the act of 1894-95, the law providing for and regulating the assessment of taxes upon the real estate of banks and the shares of shareholders, was contained in paragraph 8 of section 453 of th'e Code of 1886. Under its provisions the shares of shareholders were ascertained, assessed and paid as under the present law. The law then in force required the assessor to deduct from the total sum assessed against all the shares, as a whole, the value of the real estate and personal property belonging to the bank, and the remainder after such deduction, was to be divided by the total number of shares, and the result should be the assessed value of each share for taxation. The law also provided that the value of the shares, so assessed, might be treated by the owner (not the bank) as solvent credits or credits of value, from which amount, he was authorized to deduct his own indebtedness. The present statute reads as follows : “Every share of any incorporated bank or banking association incorporated under the laws of this, or any other State, or of the United States, whether the same be held or owned by residents, or non-residents of this State, to be assessed and collected in the county, city, town or village wherein such bank is located, and to be assessed at its actual market value to the person in whose name such share stands on the books, of. such bank, and not to the bank or corporation. It shall be the duty of the president and cashier of every such bank or banking association to make out and return under oath, on or before the 15th day of October in every year, to the tax assessor of the county in which the bank is located, a list showing the total number of shares of the capital stock of such banks, the full name and residence of every shareholder as far as known, and the actual market value of such shares and the par value of a share and the date of the last sale of stock in such bank with the names of the seller and purchaser thereof; the annual dividend declared on the stock of such bank for the last three years; the amount of the surplus, and the amount of undivided profits, not included in the surplus. Whereupon every share shall be assessed to the person to whom it belongs, at the ■ market value, so sworn to, unless from other evidence the assessor believes it should be assessed at a higher valuation; and the bank or banking association shall pay for the shareholder the tax assessed against every shareholder in such bank.”

Section 49, p. 1217, of the Acts of 1894-95, reads as follows :

‘ lBe it further enacted, That nothing in this act shall be so construed as to exempt from taxation any property now subject to taxation under laws of Alabama, not Specifically referred to, but all laws now in force designating the subjects of taxation, and all laws exempting property from taxation not inconsistent with the provisions of this act are continued in force and are not repealed.”

That the real property owned by the bank was the subject of taxation, cannot be controverted.

It will be seen by the amendment above cited to subdivision 8 of section 453 of the Code o'f 1886, that the shareholder is assessed upon the real value of his share, without the deduction of the value of the real estate and .personal property belonging to the bank as provided in said section 453, and without the privilege to deduct therefrom the indebtedness of the shareholder. We add here that the present law makes no distinction between shareholders of bank stock and individuals owning other property with respect to the privilege of deducting their indebtedness, but all are taxed alike upon the assessed value of their property without regard to the indebtedness of the tax payer. The statute then clearly provides for the taxation of real estate at its value, and the separate taxation of the shares of the shareholder at the value ' of the shares. It is manifest that the tax assessor and collector construed the statute according to its terms and the evident intent of the legislature.

It is contended by appellant that the enforcement of ' the law, as thus construed, imposes a double taxation on property, in that the value of the real estate enters / into and in large part constitutes the value of the share of the' shareholder which is taxed at its full value, while the real estate is also separately taxed at its full value. So every debt secured by a mortgage on real estate may f derive its entire value from the mortgage security, and/ yet no one ever supposed that the payment of taxes by the creditor upon the debt due him, as a solvent creditj released the mortgagor’s land from taxation. The sol-, vency of every credit is due to the ability of the debtor to pay, or the liability of his property to legal process. The question has been fully considered and settled, that the ownership of land by a corporation, is entirely separate from the ownership of shareholders of stock in the corporation. The former is realty, the latter is personalty under all circumstances. The corporation acting through the power conferred by its charter, disposes of its property absolutely. The shareholder disposes of his shares as he does of any other property he may own. The property of each which is taxable, is subject to tax-1 ation without regard to the other. The one may be-1 come insolvent, while the other is entirely solvent. A private corporation, like an individual, may invest its money in non-taxable property. When it does so, the property remains exempt from taxation. When the money of a private corporation is converted into or invested in taxable property, the property remains subject to taxation. — Desty on Taxation, 330 ; Ib. 371; Maguire v. Board of Revenue, 71 Ala. 401; VanAllen v. The Assessor, 3 Wall. 583. Many authorities might be cited to the proposition.

Affirmed.