THE PEOPLE v. THE NATIONAL GOLD BANK OF D. O. MILLS & CO., 51 Cal. 508

By the Court: Action to recover delinquent taxes assessed by the city assessor of the city of Sacramento. The act of April 25, 1863, to incorporate said city requires the taxes to be levied and collected in accordance with the general revenue act of May 17, 1861.

The finding shows that the defendant was assessed as follows: “Capital stock $300,0C0, and solvent debts secured by mortgage or otherwise, $6,000.” It is further found that the capital of the defendant is $300,000, all of which was and is invested in United States bonds; that its capital stock is $300,000 divided into shares of $100 each; that such shares are owned by persons other than the defendant, and that the defendant is not interested therein.

It is provided by the act of Congress, under which the defendant was organized, that the capital of the bank, which is invested in United States bonds, shall not be subject to taxation. The defendant can be held liable for the taxes in this case only on the theory that a corporation is liable, under the provisions of the revenue act of 1861, for taxes assessed upon its capital stock—that is to say, the “capital stock ” regarded as the aggregate of the stock issued by the corporation.

The revenue act does not provide that a corporation shall be so liable, or be assessed therefor; but on the contrary the general provisions of the thirteenth

section of the act require that the assessor shall list and assess all property to the person, firm, corporation, association or company owning or having the possession, charge or control thereof. The provision of the thirteenth section, that the owner or holder of stock in any company, etc., the entire capital of which is assessed or invested in property which is assessed, shall not be assessed for his stock, is in effect a provision that when the capital is not so assessed, the stock shall be assessed to the owner thereof.

It is also provided by the thirteenth section, that the president, etc., of the corporation, shall furnish a statement “of all the real estate and personal property within the county, owned, claimed by, or in the possession or control” of such corporation; and there is no provision to the effect, that he shall furnish a statement of the capital stock of such company.

This provision tends to strongly show that it was the intent of the act, that the corporation should be assessed only for property “owned, claimed by, or in the possession or control” of the corporation. ¡ The question as to the power of the Legislature to provide that the corporation shall be primarily liable for the taxes assessed upon the shares of stock issued by such corporation, is not involved in this case, for the revenue act, as we construe it, does not attempt to declare such liability.

The defendant, not being the owner of the capital stock, the same having issued to and being held by other persons, is not liable for the taxes assessed upon the same. Judgment reversed, and cause remanded, with directions to render judgment on the findings for the defendant.