SUPERVISORS

v.

STANLEY

Mr. Justice Miller delivered the opinion of the court.

Stanley recovered a judgment against the Board of Supervisors of the County of Albany, for taxes exacted and paid under legal process, on shares-of the stock of the National Albany Exchange Bank. A large number of the shareholders of the bank who had paid this tax made an assignment of their claims to him, and the-judgment was for the sum of $61,991.20, with interest and.costs.

The ground of this recovery was that the statute of New York, under which the shares were assessed, was void, because it did not permit the shareholder to make deduction of-the amount of his débts from the valuation of his shares of stock,, in ascertaining the amount for which they should be •taxed. The pleadings in the case set out the sums paid by the stockholders and their names,-and their assignment to Stanley, the payment under compulsion of-legal process, and a demand for the repayment on the Albany County authorities.

The case was submitted to the court on a waiver of trial by jury, and on the finding of facts and conclusions of law thereon by the court, judgment was rendered for plaintiffs. The facts found by -the court are thus stated: —

“ First, That the allegations of the complaint in regard to the citizenship of the plaintiff, the citizenship and powers and liabilities of the defendant, the organization and capital of the National'Albany Exchange Bank, the ownership of the shares of capital stock of the“National Albany Exchange Bank, the assessment of the stockholders in said bank, named in said complaint, by the board of assessors of the city of Albany, the names and residence's of said stockholders, the collection of taxes from said stockholders, and the payment of the same to the county treasurer of the county of Albany, and the demand made by Chauncey P. Williams, before the commencement of this action’ of the treasurer of the county of Albany, are true as therein .set forth.

" Second, That the amounts collected from the said stockholders and paid to the treasurer of the county of Albany, and the' times when the said amounts were so paid to said treasurer, were as follows, to wit:'—

$907 90 paid.........August 11, 1874

127 84 paid.........August 11, 1874

1,868 06 paid..........May 1, 1875

1,409 33 paid May 27, 1876

1,202 32 paid.......' . . May 3,. 1877

1,336 60 paid ......... April 17, 1878

1,473 02 paid.....' . . . . April 22, 1879

11,604 75 paid........ . ’. May 1, 1875

8,147 26 paid....... . May 27, 1876

7,822 34 paid ...-.,.....May 3, 1877

7,357 94 paid . . . . -. . . . . April 16,1878

6,243 20 jpaid .....April 2Í, 1879

“ Third, That the sums above named were not paid voluntarily by said' stockholders, but were forcibly collected by the marshal of the city of Albany, under a warrant issued to such marshal by the receiyer of taxes of said city, pursuant to a warrant issued to said reeeivér of taxes by the board of supervisors of the county of Albany, by levying upon the property of the said stockholders respectively, as alleged in said complaint.

• “ Fourth, That the said assessments were ' mqde and said amounts collected and received* by the treasurer of the county of Albany, as above stated, under color of an act of the legislature of the State of New Yorkj entitled ‘An Act authorizing' the taxation of stockholders of banks, and surplus funds of savings banks,’ passed April 23, 1866, being chapter 761 of the laws of 1866, and not otherwise.

. “ Fifth, That'the allegations of the complaint with reference to the assignments by the respective, stockholders of said bank of their claims against the county of Albany, by reason of the matters alleged in the said complaint, are true as set forth in said complaint, and that the plaintiff, ,at the time of the commencement of this action, was the holder and owner -of all claims against the county of Albany, or against the, defendant, arising out of the matters alleged and -set forth in said complaint.

“ Sixth, That the said act of. the legislature of the State of New York,' chapter 761 of the laws of 1866, did not permit the deduction of debts owing by the owners of stock in banks or-banking associations, in the assessment thereof for taxation, although such deduction of debts of the owner was, -at' the time of the assessments alleged in the said complaint, permitted and required by the laws of the State of New York to be made from the value of every kind of personal property and moneyed capital, other than bank.stock, in assessing the same for the purpose of taxation.

“ Seventh, That the allegations in the fourth count of -said complaint, as to the presentation to the said board of assessors by said Chauncey P. Williams of the affidavit of .his indebted-' ness, and the request by him for a reduction of his assessment on his bank stock, and the refusal of said board of assessors to make such reduction, and the application by said Williams to the Supreme Court of the State of New York for' a writ of mandamus, and the-subsequent legal proceedings thereon, including the decision of the Supreme Court of the United States, are true, as set forth in said fourth count.”.

It.does not appéar by this finding of the court that any shareholder, for whose payment of taxes this .suit is brought, made affidavit or other application in regard to his indebtedness, that it might be deducted from his assessment, or that he owed anything to be deducted from the assessed value of his shares, except, the seventh finding of facts in regard to C. P. Williams.

Unless, therefore, the other shareholders who paid the tax on the shares of their stock were entitled to recover back the sum paid without any evidence that they had made affidavit of the amount which they would be entitled to deduct from the assessment of their shares, if the same rule had been applied -to-assessment of bank shares as to other personal-- property, and without any evidence that" they owed anything whatever to be deducted from any assessment of their personal .property-, including bank shares, the judgment in tljis case cannot be supported.

The judge who decided the case on the circuit found as a con elusion-of law that the-assessment of all shares of national banks was void, because the statute' of New York, under which the assessments were necessarily made, was void, as being in conflict with the act of Congress on that subject,-and he declares, in an opinion delivered in the ease of The National Albany Exchange Bank v. Hills, Receiver of Taxes, in a chancery suit, that the assessments in this class of cases are absolutely void, the assessors having acted without any jurisdiction.

If this view, of the subject be sound, — if the officers who assessed and collected this tax were utterly without authority to collect any tax whatever, or, if there was no law by which in any case they could assess and collect a tax on shares of national banks; — then-it is of no consequence to inquire of anything beyond the fact that plaintiff’s assignors did, pay such a tax under legal compulsion.

On the other hand, if the law is for any p .rpose a valid law, and if it can be held to furnish the rule of taxation as to any class of owners of national bank shares, then the onus is on plaintiff to show that his assignors are not of that class.. The question here to be decided arises under two statutes of the State of New York in regard to taxation.

The first of these is the act of 1850, relating to-the assessment and collection of taxes in the city of Albany. The sixth section of the act requires the board of assessors to prepare an assessment-roll, in which there shall be set opposite the name •of each taxpayer, (1) All his real estate liable to taxation and its value; (2) The full value-of all his personal property after deducting the just debts owing by him.

Section 9 of the act is as follows : —

“ If any person shall at any time before the assessors shall have completed their assessments make affidavit that the value of his real estate does n the' plaintiff also says, upon information and belief, that the assessment’ of said shares of stock in said banking association by said board of assessors was at a greater rate than was assessed by said’ board of assessors upon shares of stock in a bank organized under the laws of the State of New York, located in said sixth ward, and was at á greater rate than was assessed by said board upon other moneyed capital in the hands of individual citizens of the State of New York, and that for these reason's said assessment of said shares of stock, and the levy of tax thereunder, were illegal and void.” .

If this is a sufficient allegation of a distinct ground of recovery, it seems just that the plaintiff should have a hearing on it, as the defendant took issue on it and it has not been disposed of. —

We have, however, much difficulty in finding a solid ground of recovery in this statement. It is. divisible into two parts: 1. That the shares of the national' bank were assessed at a greater rate than was assessed on ’ shares of a bank organized under the laws of the State of New York, located in said sixth ward.

We are quite clear that the shares of the plaintiff are not relieved frpm taxation because a single bank of the State has been favored by mistake or by intention.

. For errors "of this kind the statutes of New York provide the .correction, which should be taken in time, and we should be very reluctant to hold that, when it has been shown that a single bank or a single individual has been taxed less than he should be, all other taxes, however just, are thereby invalidated.

That the assessment of the shares of the Exchange Bank “was at a greater rate than was assessed upon other moneyed capital in the hands of individual citizens of the State of New York.”

If by this it is supposed that a few individual instance's may be shown of partial assessments favoring citizens as compared with the national banks, we think it is erroneous. But if it is intended 'to allege that apart from the question of the right of the shareholder to deduct for his debts — a question which, in this case, was disposed of and was in issue:— it can b.e proved that the assessors habitually apd intentionally, or by 'some rule prescribed by themselves, or by some one whom they were bound to obey, assessed the shares of the national banks higher in proportion to their actual value than other moneyed capital generally, then there is ground for recovery,-and a hearing as to that should be granted.

As ’ we have said, it may be well doubted-if plaintiff intended to allege this, or to rely on proving it.

B.ut as it is a question of pleading under the New York code, and ás no injustice can occur by leaving the matter to the court below, the judgment will be so far modified as to permit the court below, in its discretion, to hear evidence on that point,, and, if necessary, to allow an amendment .of the pleading to present it properly; and it is

So ordered.