Nickerson v. Kimball.

assess property for taxation. From the bank the officer obtains. the information that enables him to make and return a list to the clerk.

"For the purpose of collecting the taxes it shall be the duty of every such bank, or the managing officer or officers thereof, to retain so much of any dividend belonging to the stockholders as shall be necessary to pay any taxes levied upon the shares, until it shall appear that such taxes have been paid." §§ 36, 37, 39, Revenue Law, Rev. Stat. 864.

It is the bank that gives the information to the officer and enables him to value the shares. It is the bank that is required to retain the dividend until the tax is paid, and it is the officer of the bank who is made liable if the dividend is not so retained. It is thus made quite clear that the statute makes the bank the agent of the stockholder for some purposes connected with the taxation of the shares of stock. In the case of The Ottawa Glass Co. v. McCaleb, supra, it is stated that "a corporation acts as quasi trustees in managing the business of the shareholders, and it is competent to the General Asseinbly to require the whole taxes to be paid by the corporation, which corporation may then require repayment of the tax on shares to be refunded by the shareholders, either by deducting the amount from dividends or otherwise."

It has been held by the Supreme Court of the United States, and by the courts of New York, New Jersey and of this State, that under the provisions of the act of Congress, the right of the States to tax all shares in the stock of the National banks clearly exists. First National Bank of Mendota v. Smith, 65 Ill. 44, and the various authorities there cited.

It has been held in the same case (supra) that the bank is the trustee of the stockholders (p. 54), "and as such possesses the lawful control over the rights and interests of the cestuis que trust, much greater than that of a mere agent for the loan of money.

"Certificates of stock are not securities for money, in any sense, much less are they negotiable securities. They are simply the muniments and evidence of the holder's title to a given share in the property and franchises of the corporation of which he is a member." Mechanics' Bank v. New York Railroad Co., 3 Kern. 627; First National Bank of Mendota v. Smith, 65 Ill. 44.

The banking corporation has a fixed locality where it must transact its business, and there wind up its affairs when it ceases to

Nickerson v. Kimball.

exist. It is the trustee of the stockholders who must come to its counter for their annual dividends, and their share of assets on final liquidation. 65 Ill. 56, supra.

It is thus seen that the stockholder has a title to a share in the property and franchises of the bank, that he is one of the owners of the bank, that this property and the franchises are managed and controlled by officers selected by the stockholders, that it is managed for the stockholders, that the bank is the trustee of the stockholders, that it is peculiarly and especially the duty of the bank to do and manage every thing so as to make the shares of stock valuable, and so as to make them yield a dividend, and to guard against every thing that may diminish the amount of dividends. The conclusion is inevitable that the bank must be the agent of the shareholder; it was only necessary to give notice to the bank. It has been seen that even original process could be served on the bank by serving on the president, cashier or director. Some of these notices were served on the president and others on the cashier. There was then sufficient notice to give jurisdiction of the persons of the shareholders. Was there a sufficient complaint? is the next question requiring attention.

The provision of the statute is, a citizen may "complain that the property of another is assessed too low." It is not stated what averments the complaint shall contain, nor is it stated whether the complaint shall be oral or written. The complaints in these cases contain nothing more than that they complain that the personal property of the shareholders of the several banks (naming them) has been assessed too low. It is objected that this is too uncertain; that no person is named, and no traversable fact is complained of and that it is vague and general.

"To complain of an assessment set opposite to each name on the assessment list, and to ask that evidence may be heard in each and every case and every name on the assessment list, or to the value of the property therein assessed, and to change the value as may seem just, and that the valuation may be reduced or raised as may seem just and equitable," has been held to be too general and too vague and uncertain. "Such complaint states no fact and is nugatory." There should be something complained of, and the party appearing should be informed of the matters which he may be required to meet. People v. Reynolds, 28 Cal. 111, and People v. Flint, 39 id. 673.

Nickerson v. Kimball.

The California statute may not be like our statute in every particular, but no reason is seen why the Illinois courts should hold differently from the authorities cited.

In the complaint held to be nugatory there was no complaint of any valuation, or of any parcel of property or to any species of property. It was not complained that the valuation was too high or too low. No person or class of persons is described in the complaint. In these cases under consideration no one person, but a class of persons, is named; no one article of property is described. The averment is, the shares of stock of the shareholders of the particular bank is valued too low. The complaint and notice might have named each particular shareholder, and they might have designated the number of shares owned by each shareholder. But why? The shareholders, if named each by himself, and if told the precise number of shares owned by each, would not be the wiser for the information. The description, "shareholders in a particular bank," though not the names of persons, is so definite and certain, that no other persons can be mistaken for them. There can be no question as to who is meant. It is the stock, it is the shares of stock, that is described as assessed "too low." This can be easily understood. This would be the case even though there was nothing else in the record. But all these shares of stock had been regularly assessed to each respective owner thereof, so that the complaint and notice meant that the shares of stock belonging to each of the respective shareholders had been valued "too low." The notice and complaint must be held sufficient.

Finding the notice and complaint sufficient, it remains to inquire what wrong or what injustice has been or is about to be done to either of the complainants?

It has frequently been held that a court of equity will not entertain a bill to restrain the collection of taxes, except in cases where it has been assessed upon property not subject to taxation, or where the tax is unauthorized by law, or where the property has been fraudulently assessed, at too high a rate. This doctrine has been announced so frequently, in so many cases and under such varied circumstances, and under such varied forms of expression, that it cannot be necessary to cite authority. But, for fear that a different doctrine might be insisted upon, the General Assembly has enacted section 191 of Revenue Law. And now "No error or informality in the proceedings of any of the officers connected with the assessment,

Nickerson v. Kimball.

levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof." In none of these bills is it claimed that any injustice has been done. The property is clearly subject to taxation. The tax is unquestionably authorized by law. It is not in any one of the bills claimed that the property has been assessed at too high a rate. It is not shown or claimed that any thing has been done that affects the substantial justice of the tax itself. It is simply averred that the assessment made and returned by the assessor was increased, and that it should not have been so increased. It is not claimed that the present valuation amounts to more than one-third the actual cash market value of the stock There is but one exception to this statement. The shareholders of the Union National Bank state that the bank has been taxed on its real estate, and that when the shares of stock were assessed the value of the real estate should have been deducted from the gross value of the stock. They claim that this deduction was made in the assessment of the stock of all the other banks where they owned real estate. But, unfortunately for the shareholders of the Union National Bank, they fail to show that any injustice is done.

If the value of the real estate be added to the assessed value of the stock, the aggregate value falls considerably below one-half the actual cash value of the stock. They simply show that others are assessed entirely too low, whilst they are not yet assessed as high as they should be. The propriety of assessing any property below its actual cash value may well be questioned, if not designated as pernicious. If all the property in the county and State was assessed at its actual value, the grand total would be increased so much that the actual wealth and resources of the State would be known and would amount to such an enormous increase over the present assessments that the rate per cent of taxation might be much reduced.

The statute provides that personal property shall be valued at its fair cash value, and yet if this cash value is imposed in only one county or town, it would be oppressive to the people of such county or town. The rule, to be of advantage, should extend throughout the State.

In no one of these cases has it been shown that the property is made to bear more than its just burden of taxation, nor have the owners been debarred of any substantial rights secured by the law

Board of Commissioners of Montgomery County v. Elston,

of the land. The tax on the property is just, and no void reason is made to appear why the owners should not pay it. A careful examination of the cases presented for the consideration of the court fails to show any thing that affects the substantial justice of the tax itself, and until this is shown the court cannot grant the relief sought.

"The statutes unmistakably show that it was the legislative will that mere technical objections not affecting the justice of the tax itself should not be regarded." Beers et al. v. The People, 9 Leg. News, 176; Buck v. The People, 78 Ill. 566; Chiniquy v. The People, id. 572; Purrington v. The People, 79 id. 11.

The law imposing the taxes is in all its parts" uniform." It provides for the constitutional "valuation," and does not go counter to the law of Congress.

The complainants fail to show that any act of injustice is about to be done to them. They do not show any thing that affects the substantial justice of the tax they seek to enjoin.

The injunction asked for in each case is denied.

Injunction denied.

BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY V. ELSTON,

(32 Indiana, 27.)

Taxation of National currency,

The circulating notes of National banks, known as "National currency," are not exempt from taxation by a State.

THIS

HIS was a complaint by the appellee against the board of commissioners and treasurer of Montgomery county, to restrain a sale of certain personal property, levied upon by the said treasurer by virtue of a warrant to collect the sum of $418.49, being the amount of tax and penalty on $27,175 in the hands of the appellee on the 1st day of January, 1868.

One-half of this sum was in treasury notes of the United States, known as "greenbacks;" the remaining portion was in the notes of National banks, designated as "National currency." This sum had been returned for taxation under protest.