In Re Assessment of First Nat. Bank , 93 Okla. 233 ( 1923 )

The attorneys for First National Bank of Chickasha, in their petition for rehearing, allege:

(1) That in the opinion rendered by this court, on October 9, 1923, the court overlooked the fact that the bank was relying upon a plea of res judicata, as distinguished from a plea of estoppel by a judgment, and overlooked certain controlling decisions of the Supreme Court of the state of Oklahoma.

(2) That the court, in failing to hold a former judgment of the Supreme Court of Oklahoma was res judicata to all matters in issue in this cause, overlooked certain controlling decisive decisions from the Supreme Court of the state of Oklahoma.

(3 That the court, on the third page of the typewritten opinion, recognized only one question in this cause in this language:

"Are the judgments in the assessments of 1915 and 1916, plead in the protest and complaint of the First National Bank of Chickasha defendant in error, herein, res judicata of the same question involved in the assessment of 1920."

— thereby overlooking the extremely important question raised in this case, namely, that any attempt on part of the state taxing authorities to assess the bonds belonging to the bank or to refuse to deduct the same from the assessment against the stock belonging to the shareholders of said bank, would constitute an impairment of contract and would violate section 10, article 1 of the Constitution of the United States.

Upon a careful examination of the decision of this court, complained of, we find that all of the questions raised in the motion for rehearing were carefully considered by this court in said opinion, and in the opinion this court held that the decision in the case of National Bank of Chickasha,58 Okla. 508, 160 P. 469, did not and does not conclude the taxing authorities of the state from assessing the stock held by the individual stockholders of the bank for the reason that in that case, the only issue was between the bank and the board of equalization and the stockholders were not parties to this action, and quoted from the Supreme Court of the United States, the case of New Orleans v. Citizens Bank, 167 U.S. 371, in which it was held:

"The doctrine that an exemption of the capital of a corporation does not of necessity include the exemption of the shareholders on their shares, of stock is now too well settled to be questioned. Bank of Commerce v. Tennessee,161 U.S. 134."

And the United States Supreme Court, in the case of Van Allen v. The Assessors, 3 Wall. 573, 18 L.Ed. 229, said:

"The tax on the shares is not a tax on the capital of the bank, but upon a distinct independent interest or property held by the shareholder."

And, hence, we conclude that the rights of the shareholder being separate and distinct and independent from the capital stock of the bank in the case relied upon by the bank, it is our opinion that the stockholders' rights could not have been a subject of litigation where the question was solely and only upon the question of taxation of the capital stock of the bank invested in bonds which were sought to be taxed in case of National Bank of Chickasha, 58 Okla. 508, 160 P. 469, and we, therefore, conclude that the decision in the present case is correct upon this proposition.

Upon the proposition that to tax the property was an impairment of the contract and in violation of the Constitution, this court, in the opinion, quoted from the case of New Orleans v. Citizens' Bank, supra, quoting with approval from the case of Citizens' Bank v. Bouny, 32 La. 239, as follows:

'Moreover, in the Bouny Case the Supreme Court of Louisiana held that the bank was without authority to champion the rights of its stockholders, and the bill in this case is filed in behalf of the bank alone, and is predicated solely upon the theory that the bank was entitled to attack the tax because of the absolute duty imposed upon it to pay. The decree below, therefore, which held that the stockholders could not be taxed because of the contract right of the bank, conflicted with the settled rules of law, and accorded the complainant a right to which it was not entitled, although under the authority of the thing adjudged the nonliability of the bank to taxation as to certain objects of taxation be fully established."

Hence, we conclude that the question of the taxation of the bank property and the question of the taxation of the stock hold by the individual stockholders being separate and distinct entities, and there being no connection between the rights of the one and the other on the question of exemption from taxation there was not such a privity of interest between the bank and the stockholders to entitle the stockholders to claim an exemption founded upon a decision of the court in a case, in which they were not parties, under the authorities cited by attorney for the bank in his brief upon the petition for rehearing, either upon a plea of res judicata or estoppel.

We, therefore, conclude that this court, in the opinion complained of, did not overlook any question decisive of this case and that the opinion is not in conflict with an express statute or controlling decision to which the attention of the court was not called or which has been overlooked by the court, and it is our opinion that the petition for rehearing should be and Is hereby denied.

By the Court: It is so ordered.