State v. Royce , 68 Conn. 311 ( 1896 )

Andrews, C. J.

Section 3942 of the General Statutes provides that no suit brought by the State to recover a tax from any person or corporation shall be barred or defeated by any omission to act by the board of equalization. Such a construction has been put on this section that it seems to authorize an action by the State for any unpaid tax. State v. N. Y., N. H. & H. R. R., 60 Conn. 326, 335; Coite v. Society for Savings, 32 id. 171; Coite v. Conn. Mut. Life Ins. Co., 36 id. 512; Nichols v. N. H. & N. Co., 42 id. 103; State v. Housatonic R. R., 48 id. 42. Whether or not a suit could be maintained against the Hartford Fire Insurance Company for the portion of the tax against it, claimed in this action to be unpaid, is a question not arising in this case. The several cases which we have cited were all brought against the corporation itself; although in each case the corporation had, presumably, a cashier or secretary who had failed in each case to pay the tax sued for. An examination of the section named, as well as of the other sections of the chapter in which it is included, indicates that the legislature supposed the corporation itself would be the defendant against which any action for an unpaid tax, authorized by that statute, would be brought. The corporation is the real tax debtor.

The complaint in the present action counts upon the provisions Of title 76 of the General Statutes, and especially on § 3916 (one of the sections included in that title), which reads as follows: “The cashier or secretary of each corporation whose stock is liable to taxation and not otherwise taxed by the provisions of this title, shall on the first day of October, annually, or within ten days thereafter, deliver to the comptroller a sworn list of all its stockholders, residing without this State on said day, and the number and market value of the shares of stock therein, then belonging to each; and shall on or before the twentieth day of October, annually, pay to the State one per cent, of such value; and if any such cashier or secretary shall neglect- to comply with the provisions of this section he shall forfeit to the State one hundred dollars, in addition to said one per. cent, so required to be paid.” Another section, 3865 in the same title, constitutes a board of equalization; and § 3930 provides that said board shall hold meetings within certain specified days, “ to examine and correct” the returns made by such cashier or secretary “and the valuations required thereon,” and then enacts that the statement as corrected or made out by the said board shall be returned to the said cashier or secretary, “ and the valuation of the several items of money, estate, amount and number contained in such statement, shall be final, and the sums required shall be paid according to it.”

The complaint is recited in the statement of the case. It appears therefrom that the defendant, in each of the years 1891 and 1892, did all those things which, in the absence of any action by the board of equalization, the section first mentioned—3916 of the General Statutes—made it his duty to do, in respect to the stock of the Hartford Fire Insurance Company; and it also appears that the board of equalization, in each of the years, failed and omitted to take any action on the sworn lists so made out and returned to the comptroller by the defendant. But such omission by the board in nowise increases or in any way affects the forfeiture to which the defendant may be liable. Prima facie then, the defendant has fully performed all those acts and things which that section of the statute commanded him to do, and as a consequence he cannot be subjected to anjr forfeiture.

There are other averments in the complaint, to the effect that the market value of the shares as returned by the defendant was erroneous,—being stated at $285 per share when it ought to have been stated at $340—-and that by reason of that error the State received a very much less sum from the defendant than it ought to have received. It is this difference which the State seeks to recover in this suit. Counsel for the State in their brief and in their oral argument disclaim any right to recover the amount of the difference as a forfeiture ; they claim to recover it as the unpaid balance of a tax. It is not pretended, much less is it alleged, that the defendant can be required to pay this amount on the ground that there is any unpaid tax standing against him. There is no such tax. He can be required to pay the amount, if at all, only on behalf of the corporation whose servant he is, and whose debt the tax is.

The Hartford Fire Insurance Company is a corporation created by the legislature of this State. It would doubtless be in the power of the legislature to impose a tax on that corporation, and to make its secretary liable to a suit in favor of the State if that tax was not paid; but such a liability on the part of a corporation could never exist unless some statute clearly declared it. There is no averment in the complaint that any such liability of the defendant exists; nor is there any statute, so far as has been pointed out to us, which would justify the averment if made. Section 3916 creates no liability against any secretary of a corporation, except in the form of a forfeiture; and it is expressly conceded that the defendant is not liable to any forfeiture. It seems to us that section 3942 does not create any liability personally against him. No other sections have been cited.

There is no error.

In this opinion the other judges concurred.