Citizens' Nat. Bank of Broken Arrow v. State Ex Rel. Freeling

This was an action by the state, on the relation of the Attorney General, against the Citizens' National Bank of Broken Arrow, Okla., to recover a balance of $1,975.42 claimed to be due from it to the bank depositors' guaranty fund, as the successor of the First State Bank of Broken Arrow, Okla., on the theory that the 5 per cent. assessment, levied by the state against all state banks to provide this fund for the security of depositors in state banks, created a present indebtedness, and, notwithstanding the First State Bank paid all parts of this assessment as they matured, up to the time it was converted into this national bank, still this national bank was liable for the whole of this 5 per cent. assessment. The trial court, in accordance with the previous decision of this court, by a divided court in State ex rel. West, Attorney General, v. Farmers' National Bank of Cushing, 47 Okla. 667, 150 P. 212, sustained this claim of the state of a present indebtedness of the full 5 per cent. levy, but limited the recovery in this particular action to the parts of the assessment maturing between the time of this conversion and the filing of the petition; and the bank appeals.

While the amount involved in this particular case is small, it is stated in the briefs and on the argument that more than 100 national banks are in a similar situation, and the amount involved to the fund more than $600,000. The facts are not disputed, and the case turns on the construction of the statute creating this fund, section 3, c. 31. Session Laws 1910-11.

It is contended by the bank that it was liable only for such parts of this assessment as matured while it was doing business as a state bank. It is contended by the state that this statute created a present existing indebtedness of 5 per cent. of the average daily deposits of this and every other bank, during their continuance in business as state banks, and further, by continuing to do business under the law, the bank assumed and agreed to pay the same — a contractual liability. If this is true, then this bank, which paid all these maturing assessments up to the time it nationalized, must continue to pay for some 15 years these remaining assessments, during which time neither it, nor its depositors, will have any benefit from these payments, nor from this fund — a plain act of injustice, and this on the ground of logic. It may be the logic of my Lord Coke. It certainly is not the justice of my Lord Chancellor, and, when logic and justice part company, so much the worse for logic. Not that the judge may decide cases according to his particular ideas of justice, for it must never be forgotten that this is a government of law and not of men. No doubt Nero and Ivan the Terrible administered justice according to their ideas of justice; and the Roman or Russian citizen bad a sportsman's chance of guessing how Nero or Ivan would act under particular circumstances. But even that poor privilege would be denied an American citizen, for he cannot know in advance what particular judge will decide his case. Justice, and not logic, is the object of the law. The Giver of all real law gave us a much better guide to the interpretation of the law than all the logicians, when he said: "By the fruit ye shall know the tree." It must be presumed that the Legislature did not intend by this act an actual injustice. Such a motive should not be lightly attributed to such a body; for the law, rightly enacted and rightly interpreted, follows along the moral, rather than the logical, lines.

It is contended that this act made a levy in praesenti, a present indebtedness, against all the banks operating under the law; and, as this bank did business for more than a year under this law, it is liable for the full 5 per cent. of this assessment. Both the premise and the conclusion of this proposition are unsound. The parent and the child are alike discredited. Let us examine this act. It provides (section 3, c. 31, Session Laws 1910-11):

"There is hereby levied an assessment against the capital stock of each and every bank and trust company organized or existing under the laws of this state, for the purpose of creating a depositors' guaranty fund, equal to five per centum of its average daily deposits during its continuance in business as a banking corporation."

Now does this last clause, "during its continuance in business," refer to the "five per centum of its average daily deposits," or to the "assessment"? If the fund is to be "equal to five per centum of its average daily deposits during its continuance in business as a banking corporation," no man can tell what the amount of this fund will be until every state bank goes out of business or this law is repealed, maybe more than 100 years; and unless the levy is to be unnecessarily excessive, some depositors may have to wait a long time for their money, from a very easy collector. That this clause does not refer to "its average daily deposits during its continuance in business" is made plain by the next sentence:

"Said assessment shall be payable one-fifth during the first year of existence of said bank or trust company, and one-twentieth during each year thereafter until the total amount of said five per centum assessment shall have been fully paid."

This would be impossible, if the average daily deposits of the bank during its continuance in business was the basis for computing the amount of the assessment. There must be some other basis, and it is accordingly given in the third sentence, as follows:

"The average daily, deposit of each bank during the preceding year prior to the passage and approval of this act shall be taken as the basis for computing the amount of the first payment on the levy hereby made."

Not the average for the existence of the bank. The fourth sentence provides:

"One year after the passage and approval of this act, and annually thereafter, each bank and trust company, doing business under the laws of this state, shall report to the bank commissioner the amount of its average daily deposits for the preceding year, and, if such deposits are in excess of the amount upon which the first or subsequent payment of the levy hereby made is computed, each bank and trust company, having such increased deposits, shall immediately pay into the depositors' guaranty fund a sum sufficient to pay any deficiency on said first or subsequent payment, as shown by such increased deposits, by giving credit to the depositors' guaranty fund and issuing a special certificate of deposit, payable to the bank commissioner, bearing four per centum interest per annum."

Evidently using the first year's average as the basis for computing the amount of each subsequent payment until there is an increase, and then using that. By the fifth sentence it is provided:

"After the five per centum assessment, hereby levied, shall have been fully paid, no additional assessment shall be levied or collected against the capital stock of any bank or trust company, except emergency assessments, hereinafter provided for, to pay the depositors of failed banks, and except assessments that may be necessary by reason of increased deposits to maintain such funds at five per centum of the aggregate of all deposits in such banks and trust companies, doing business under the laws of this state."

Evidently this statute contemplates the raising of this fund in 17 annual payments, and when the seventeenth is paid in the 5 per cent. fund is paid in, or, to use the language of the statute, "the five per centum assessment hereby levied shall have been fully paid." So that it is clear that the basis of computation is the preceding year's deposits, and not the average daily deposits during the continuance of the bank in business. It is evident, therefore, that these words, "during its continuance in business as a banking corporation," have no reference to the preceding clause, "equal to five per centum of its average daily deposits." The only other part of this sentence to which they could possibly refer the assessment, and by reason of the succeeding sentences of the section a necessary reference. So that the meaning of the sentence is, and its words might properly be rearranged so as to read:

"There is hereby levied against the capital stock of each and every bank and trust company, organized or existing under the laws of this state, an assessment, during its continuance in business as a banking corporation, for the purpose of creating a depositors' guaranty fund, equal to five per centum of its average daily deposits."

Now, while this first sentence does not divide this 5 per centum into annual assessments, the succeeding sentences plainly do; and the meaning of this statute is just as though it were written into this first sentence that this 5 per centum is divided into 17 different annual assessments, maturing and payable annually, by each and every bank, "during its continuance in business." That is, if any of these annual assessments was not payable "during its (the bank's) continuance in business," it was not and never could become a liability of the bank. Besides, when the bank went out of business there was no means of ascertaining the amount of these future assessments; and it is impossible to pay that which cannot be ascertained, and it is not fair to attribute this to the Legislature as an oversight. Unless this is the meaning of this statute, the words "during its continuance in business" have no meaning. The object of the law was to secure the payment of current deposits, not deposits existing at the time of the completed payment of this 5 per centum, or when the bank had gone out of business, but during all the time these assessments were maturing, as well as after.

When the bank went out of business as a state bank, and its liabilities settled, there were no deposits to be guaranteed, so far as it was concerned, and there was no consideration for any future payments. There was nothing for the law to act upon; and when the reason of the law ceases, then the law itself ceases. The payments of these assessments are conditioned on the bank going on with, not stopping, business. Evidently the Legislature so intended it, for by the act of 1913 (Session Laws 1913, p. 31) it is provided:

"Whenever any state bank shall liquidate, or cease to operate under the banking laws of this state, it shall be liable for its pro rata share of any existing indebtedness against the said depositors' guaranty fund or any unpaid assessments."

Thus furnishing the rule of thumb for the interpretation of the law, and not the law itself. And so the Supreme Court of the United States understood this law, for in the case of Noble State Bank v. Haskell, 219 U.S. 575, 31 Sup. Ct. 299, 55 L. Ed. 341, in sustaining the constitutionality of this law, that court says:

"For in this case there is no out and out unconditional taking at all. The payment can be avoided by going out of the banking business, and is required only as a condition for keeping on, from corporations created by the state."

But it is contended that the bank, by continuing to do business under the act, assumed and agreed to pay this full 5 per cent. — a contractual liability. It will be remembered that the constitutionality of this law was sustained by the Supreme Court of the United States, in the Noble State Bank Case, supra, as a valid exercise of the police power of the state. In the opinion of the writer this particular law might also be sustained as a valid exercise of the taxing power; the purpose being a public purpose — that is, taxation by assessment, as in drainage or paving districts. It has many of the features of a tax law, and in the opinion of the writer such it is, and should be so construed.

But whether we regard it as the exercise of the police power, or the taxing power, or of both, clearly this cannot be a contractual liability. Nor can it be enforced on the ground of estoppel. The estoppel might, in a particular instance, render a statute enforceable; but it does not, and cannot, substitute a contract for the statute. It is true that we have what are known as implied contracts. But this is where the party contracts by his acts. A man can contract by his acts, as well as by his tongue, or his pen; for they are but different means of expressing his assent, and acts speak louder and more sincerely than either the tongue or the pen. But surely the man in the street — this man well beloved of the law; in the last analysis, the only really great lawyer — would not feel that he was agreeing to pay this involuntary exaction merely because he did not quit business, any more than the colonies felt they were bound to pay the taxes imposed by the British Parliament merely because they continued to exist as colonies.

Evidently the Legislature did not regard this assessment as contractual in its nature. The act of 1907-08 (Laws 1907-08, c. 6, art. 2) provided for a fund of 1 per cent. The 1909 act (Laws 1909, c. 5, art. 2) raised this to 5 per cent. The act of 1913 substituted a fund of 2 per cent. The act of May, 1908, amended the law, so as to make it applicable to trust companies; and the act of 1911 changed the law, so as to exclude trust companies. It may repeal the law, and thus relieve all the banks from the payment of these future assessments. This law did not require or permit any act on the part of the bank for its enforcement. The bank's assent or dissent was absolutely immaterial. Its agreement, express or implied, was equally so. The Legislature was proceeding under a power which required none of these. It was an enforced, involuntary charge, as all taxes and all impositions under the taxing and police power are, in invitum, willing or unwilling, and is to be so construed; and, speaking only with reference to the exercise of these powers, an assessment is not a contract, and, if a contract, it is not an assessment.

This law is therefore to be regarded as the lawfully expressed determination and purpose of the Legislature to impose these assessments as they became payable upon the banks as a condition of going on, and not of stopping business. If a bank is doing business when one of these assessments becomes payable, it is liable; if not, it is not. The consideration which this law gives for these assessments is the securing of current deposits, and thereby securing the banks; and when the consideration for the assessment fails, evidently the assessment itself fails.

The writer is aware that there are many decisions, state and federal, imposing taxes under the form of contract; taxation by presumption, taxation by inference — logic, if you please; each presumption, and each inference, more hazy and nebulous than the other, until the most powerful legal telescopes and microscopes fail to discover any foundation for the tax. This is to impose taxes without any known rule of law to support them. It is to ignore and set at naught the beneficent and restrictive provisions of the Constitution, and the fundamental law, like equality, uniformity, classification, popular vote, notice, opportunity to be heard, public purpose, etc. The American and English people, through hard and harsh experience, have hedged about the levy of taxes and other exactions with many beneficent provisions and restrictions; and to substitute contracts or other devices for the tax is to ignore these provisions, and leave the exaction to the mere whim of the official, or the exercises of the logician in his favorite sport.

Besides, the courts have neither the means nor the machinery to impose, collect, or apply taxes. Their forms of procedure, including the judgment, which latter so largely determines their jurisdiction, were never intended, and are wholly inadequate and unsuited, to impose, collect, or apply taxes; and the writer sincerely hopes that the Supreme Court of the United States will early have occasion to review these decisions, fundamentally, and he firmly believes, when it does so, it will judicially condemn to death this false doctrine, as it was denounced in the Magna Charta and the declaration of American Independence, and as it was in fact shot to death at Bunker Hill and at Yorktown; for, no matter how often one head of this hydra-headed monster is cut off, another springs up in its place. The power to tax has been wisely withheld from the courts by the people. The case at bar is a good example of this. If this court can imply a contract to pay this assessment, neither this bank, nor its depositors, will probably receive any benefit from them. Yet the state bank that remains in business for more than 20 years will only have to pay 3 per cent., instead of 5 per cent., and it, and its depositors, get the benefit of this fund during all those years.

It is also true that there are a number of decisions which enforce the payment of what are in reality taxes under the form of contract. But on investigation it will be generally found that the basis of these decisions is an express contract with the taxpayer, by express legislative authority, in lieu of the ordinary property tax, like the payment of a certain per cent. of its gross revenue by a railroad company, in consideration of its release from the ordinary property tax, or the payment of a large license or charter fee for a similar consideration. But in these instances it is the Legislature, and not the court, which imposes the tax; sometimes doing indirectly that which it cannot do directly, and generally owing to the unfortunate wording of some constitutional provision, and often aided by a too literal construction. For example, to take one of many, the Eastern states omit in their Constitutions any important restrictions upon the taxing powers of the Legislature, thus permitting the Legislature to adjust the taxing system of the state to the ever-changing conditions of society. Unfortunately the constitutional convention of Ohio, in its early Constitution, provided for the taxation of property by uniform rule, without any provision for the classification of property for the purpose of taxation. This was copied by the other states in their Constitutions, from the Alleghenies to the Pacific — at the time a perfectly proper provision, for all property was tangible. But as conditions changed it was soon found that the poor man working in the street with his single team was paying more taxes than the rich corporation with its intangible property; and too often this was assisted by a too literal construction, for classification is uniformity, and uniformity is classification, and, while there are no new principles in constitution making, the ever-changing conditions of an enterprising and progressive people make amendment and restatement in constitutions a never-ending and ever-pressing necessity. As the ocean keeps itself pure by constant agitation, so the state must keep itself efficient by constant progress in law-making; and as to this particular question this has been largely done by amendment in some of the states, and by the original in others, so that generally there is no necessity to resort to these substitutes and subterfuges in the imposition of taxes. That which is a contract should stand on its own bottom as a contract, and that which is a tax as a tax, in order that the citizen and the state may have the protection of the beneficent provisions of the Constitution and the fundamental law; and the courts should, as they generally do, lend a sympathetic ear to discover the purpose of the law and the intent of the Legislature, in order that they may recognize the one and give effect to the other.

We have no professional lawmakers. It is not right to construe these laws, fundamental or statutory, as though they sprung full-fledged and full-armed from the head of some professional constitution-making Jove. We have no professional class of constitution makers or legislators; and we must not forget that the constitution maker and the legislator have troubles and difficulties of their own. The paucity of language, the absence of time-tried, tested, and applied legislation, the ever-changing conditions of an enterprising and progressive people, the limitations of human foresight, and the difficulty, the impossibility, of covering a world of single instances, make this hard and fast rule impossible. As intimated above, the writer is of the opinion that this statute is of the nature and should be construed as a tax measure. He cannot see any constitutional restriction, preventing the Legislature from forming the whole state into one banking district and applying the principle of taxation by assessment, to raising the necessary fund to secure the payment of these deposits, as is done in the formation of drainage districts and paving districts. The fact that these involve real estate is only because real estate is most commonly benefited. But there can be no difference in principle between real estate and personal property; and manifestly the capital stock of these banks is benefited by this fund. The fact that a paving district or a drainage district is but a small part of the state does not militate against this, as it happens that only those parts are sufficiently benefited to warrant the exercise of the power. No doubt the entire state could be formed into one road district, or one school district, and the state itself collect the revenue, and regulate and maintain the highways and schools. This is a mere matter of apportionment.

Nor, if we consider that this statute is sustained, and sustained only, by the police power, does this prevent the Legislature from introducing into it certain features of the more beneficent taxing or other powers. The police power is not a mere arbitrary, cruel power; it is as kindly as the people from whom it springs, and yields in proper cases to the more beneficial taxing power, as well as other powers, as the good policeman yields to the sympathetic, kindly hand of the parent to stay the wayward youth. The authority to form drainage districts and paving districts, as we know them, is entirely statutory, though the germ may be found in the old charters and statutes. For instance we read in the Magna Charta:

"23 — Neither a town nor any tenant shall be distrained to make bridges or banks, unless that anciently and of right they are bound to do."

Truly out of the old fields "cometh the new corn." A reading of the old statutes and decisions would indicate that originally the formation of drainage districts was done principally under the police power — the right of the state in the interest of the public health and sanitation, to drain swamps and overflowed lands; and this is still indicated in our statute, and the statutes of other states. Yet this did not prevent the Legislature from introducing into it taxation by assessment, and making it a real benefit to the land and the landowner; and this although the police power may proceed without being limited by benefit to the person or property affected. The hand of the Legislature should be left free to give as much return to the banks for this fund as it may; to make it in reality the property of the banks, subject to the management and application by the state as provided. Throw around it the constitutional guaranties of equality, uniformity, classification, public purpose, etc., and impose the tax by that authority which alone can impose taxes, the people's representatives. By basing the fund on the taxing power, you give it the very highest security; that power which makes the bonds of the United States and the states the very best security. And by giving this security it removes the fear of loss, the fear of panic, and permits the very largest use of the bank's fund in the business of the community. It prevents the arbitrary exaction of the official, and the disastrous consequence of hasty and ill-considered action. It gives to those who have to bear the burden an opportunity to be heard, and an assurance of the necessity for, and the proper application of, the fund; and it enlists the hearty co-operation of those whose duty it was, and whose interest it now is, to protect their depositors.

The case of State ex rel. West, Attorney General, v. Farmers' National Bank of Cushing, 47 Okla. 667, 150 P. 212, is overruled. The judgment is reversed, and the case remanded, with directions to dismiss the action.

HARRISON and McNEILL, JJ., certifying their disqualification, J.F. KING and A.R. GARRETT were regularly appointed Special Justices.

OWEN, C. J., and PITCHFORD and JOHNSON, JJ., concur.

KANE and SHARP, JJ., concur in the conclusion.

HIGGINS, J., did not participate.