Stanley v. Board of Supervisors of the County of Albany.

exception of a few stockholders in the National Albany Exchange Bank, and that such method was pursued by the assessors with no purpose or intention of unduly assessing shares of National banks, but simply because it was thought by them to be the most satisfactory one to the owners of such property, and the best in itself. A different method might have led to perplexing difficulties, owing to the great fluctuations to which shares in banking institutions are subject, their value depending very much on the skill and wisdom of the managers of those institutions. Intelligent men constantly differ in their estimate of the value of such property, and the stock market shows almost daily changes. Presumptively, the nominal value is the true value; any increase from profits going, in the natural course of things, in dividends to the stockholders. This method, applied to all banks, National and State, comes as near as practicable, considering the nature of the property to securing, as between them, uniformity and equality of taxation; it cannot be considered as discriminating against either. Both are placed on the same footing. In Mercantile Nat. Bank of New York v. City of New York, recently decided, this court said: "The main purpose of Congress in fixing limits to State taxation. on investments in the shares of National banks was to render it impossible for the State, in levying such a tax, to create and foster an unequal and unfriendly competition by favoring individuals or institutions carrying on a similar business and operations and investments of a like character. The language of the act of Congress is to be read in the light of this policy." Ante

The method pursued could in no respect be considered as adopted in hostility to the National banks. It must sometimes place the estimated value of their shares below their real value; but such a result is not one of which the holders of National bank shares can complain. It must sometimes lead also to over-valuation of the shares; but, if so, no ground is thereby furnished for recovery of the taxes collected thereon. It is only where the assessment is wholly void, or void with respect to separable portions of the property, the amount collected on which is ascertainable, or where the assessment has been set aside as invalid, that an action at law will lie for the taxes paid, or for a portion thereof. Over-valuation of property is not a ground of action at

the

Stanley v. Board of Supervisors of the County of Alabny.

law for the excess of taxes paid beyond what should have been levied upon a just valuation. The courts cannot, in such cases, take upon themselves the functions of a revising or equalizing board. Newman v. Supervisors, 45 N. Y. 676-687; National Bank of Chemung v. Elmira, 53 id. 49-52; Bruecher v. Village of Port Chester, 101 id. 240–244; Lincoln v. Worcester, 8 Cush. 55-63; Hicks v. Westport, 130 Mass. 478; Balfour v. City of Portland, 28 Fed. Rep. 738.

In nearly all the States, probably in all of them, provision is made by law for the correction of errors and irregularities of assessors in the assessment of property for the purposes of taxation. This is generally through boards of revision or equalization, as they are often termed, with sometimes a right of appeal from their decision to the courts of law. They are established to carry into effect the general rule of equality and uniformity of taxation required by constitutional or statutory provisions. Absolute equality and uniformity are seldom, if ever, attainable. The diversity of human judgments, and the uncertainty attending all human evidence, preclude the possibility of this attainment. Intelligent men differ as to the value of even the most common objects before them of animals, houses and lands in constant use. The most that can be expected from wise legislation is an approximation to this desirable end; and the requirement of equality and uniformity found in the Constitutions of some States is complied with when designed and manifest departures from the rule are avoided.

To these boards of revision, by whatever name they may be called, the citizen must apply for relief against excessive and irregular taxation, where the assessing officers had jurisdiction to assess the property. Their action is judicial in its character. They pass judgment on the value of the property, upon personal examination and evidence respecting it. Their action being judicial, their judgments in cases within their jurisdiction are not open to collateral attack. If not corrected by some of the modes pointed out by statute, they are conclusive, whatever errors may have been committed in the assessment. As said in one of the cases cited, the money collected on such assessment cannot be recovered back in an action at law, any more than money collected

Stanley v. Board of Supervisors of the County of Albany.

on an erroneous judgment of a court of competent jurisdiction before it is reversed.

When the over-valuation of property has arisen from the adoption of a rule of appraisement which conflicts with a constitutional or statutory direction, and operates unequally, not merely on a single individual, but on a large class of individuals or corporations, a party aggrieved may resort to a court of equity to restrain the exaction of the excess, upon payment or tender of what is admitted to be due. This was the course pursued and approved in Cummings v. National Bank, 101 U. S. 153; 2 Nat. Bank Cas. 74. In that case it appeared that the officers of Lucas county, Ohio, charged with the valuation of property for the purposes of taxation, adopted a settled rule or system, by which real estate was estimated at one-third of its true value, ordinary personal property about the same, and moneyed capital at three-fifths of its true value. The State Board of Equalization of bank shares increased the valuation of them to their full value. Upon a bill brought by the Merchants' National Bank of Toledo against the treasurer of the county in which the bank was established, to enjoin him from collecting taxes assessed on the shares of the stockholders, payment of which was demanded of the bank under the law, it was held that the rule or principle of unequal valuation of the different classes of property for taxation adopted by the board of assessment was in conflict with the Constitution of Ohio, which declares that "laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, and also all the real and personal property according to its true value in money," and worked manifest injustice to the owners of shares in National banks; and that the bank was therefore entitled to the injunction against the collection of the illegal excess, upon payment of the amount of the tax which was equal to that assessed on other property. That decision was rendered upon a disregard by the assessing officers of a rule prescribed by the Constitution of the State, but the same principle must apply when their action in assessing the shares of National banks is in disregard of the act of Congress. The plaintiff below did not think proper to resort to this method of obtaining relief, which would have given him all he was en

Williams v. Board of Supervisors of the County of Albany.

titled to, if in fact his shares were assessed at a greater rate than was assessed on other moneyed capital, because of their illegal over-valuation.

It only remains to notice the exceptions taken to the exclusion of the testimony offered, that the law of New York required an oath or certificate to be annexed to the assessment-roll substantially different from the oath actually annexed, and the claim that the plaintiff has a right to recover the taxes assessed in 1873 and collected in 1874. The exclusion of the testimony as to the alleged defect in the assessment-roll was correct, under the stipulation of the parties that the plaintiff would not claim a right to prove any failure of the assessors to take the proper oath. A defect in the form of the oath annexed, if there be one, could have no bearing upon the question at issue. The claim for the taxes assessed in 1873 is open to similar objections to those presented against the claim for the taxes of the other years. If the assignors of the plaintiff had any just grounds of complaint to the assessment as excessive, they should have pursued the course provided by statute for its correction, or resorted to equity to enjoin the collection of the illegal excess, upon payment or tender of the amount due upon what they conceded to be a just valuation.

It follows that the judgment of the court below must be affirmed; and it is so ordered.

Judgment affirmed.

WILLIAMS V. BOARD OF SUPERVISORS OF THE COUNTY OF ALBANY.*

A county assessor assessed the stock of all the banks in the county, both State and National, at the par value. The actual value of the shares of the National Albany Exchange Bank was from twenty-five to thirty per cent above par. The actual value of the shares of all the banks in the county, with one exception, was above par from ten to over one hundred per cent.

In a

*Affirming 21 Fed. Rep. 99.

Williams v. Board of Supervisors of the County of Albany.

suit by a shareholder of said National bank, to recover the amount paid upon his stock on the ground of discrimination, held, that the discrimination not being designed by the assessor, the assessment was valid. Where the assessors are required by statute to complete the assessment-roll by a certain date, and to make oath to it in a prescribed form, and these requirements are necessary to enable notices to be published specifying a time when they would meet to review the assessments on the application of any person aggrieved, the non-completion of the assessment-roll by the specified date, and departure from the prescribed form of oath, may be cured by remedial statute subsequently enacted, providing the right of the tax payers aggrieved by the assessment to have their objections passed upon is saved.

N error to the Circuit Court of the United States for the Northern District of New York.

IN error to the Circuit Court of

Matthew Hale, for plaintiff in error.

S. W. Rosendale and W. H. Peckham, for defendant in

error.

FIELD, J. This is an action to recover the amount of certain taxes alleged to have been illegally collected from the plaintiff and others on sundry shares of stock held by them in the National Albany Exchange Bank, in the city of Albany, New York, and paid into the treasury of the county. The stockholders other than the plaintiff assigned to him their respective claims before its commencement. Their demands were originally embraced in an action brought by one Edward N. Stanley against the board of supervisors, he being at the time assignee of their claims. In that action, judgment was recovered by him. The case being brought to this court, the judgment was reversed, and the cause remanded, with leave to the court below, in its discretion, to hear evidence upon the point whether the shares were habitually and intentionally assessed higher, in proportion to their actual value, than other moneyed capital generally, and, if necessary, to allow an amendment of the pleadings that the point might be properly presented. Supervisors v. Stanley, 105 U. S. 305; ante 33. When the case was remanded, on application to the court below, all the counts of the complaint, except the fourth, were amended. Subsequently however Stanley discontinued the action as to the claim