pl'eservedand continued by the seventy·fifth section of the act ol1893, which reads as follows:
The power and duty to levy and collect any tax due and unpaid In and devolve upon the. county treasurer and his successors in office after liis return to the county auditor, and until the tax is paid; and the warrant attached to the assessment roll shall continue in force and confer authority upon the treasurer to whom the same was issued, and upon his successors In office, to collect any tax due and un.collected thereon. This section shall apply to all assessment rolls the warrants thereto attached, which issued upon which taxes may be due and unpaid, as well bave as those issued."
FIRST NAT. BANK OF WALLA WALLA v. HUNGATE. (Oircuit Oourt, D. Washington, S. D. June 18, 1894:.)
TAXATION OF NATIONAL BANK STOCK-COLLECTION FilOM BANK.
On an .assessment of bank stock under 1 Hill's Code Wash. §§ 1038-1040, making banks agents for their respective shareholders, and authorizing the cOllection from each bank of taxes on its stock assessed against it as such agent, if the statute is not complledwith by charging the bank on the aslil!lSsment roll, and it is not even referred to by its proper corporate ;name in the assessments against its shareholders, the warrant to the collector· CQnfers no authority to seize the property of the bank for the purpose ot enforcing payment of taxes charged against shareholders. Failure to exhaust the means of redress afforded by the laws of Washington .for equalization of assessments does not preclude a national bank from obtaining relief, in a federal court In the state, against the coHectionfrom it of taxes on its stock, on the ground of unjust discrimination in the valuation of such stock. v. King Co., 23 Pac. 409, 1 Wash. st. 46, followed.
SAME-UNJUST DISCRIMINATION-RELIEF IN EQUITY.
SAME-TENDER OJ' TAX.
Failure of such bank to make and keep good a tender of so much of the tax as was justly due does not bar such rellef, where nothing is due from the bank, there being no assessment against it, and where the county officers have declared that they will not accept less than the whole amount levied.
This was a suit by the First National Bank of Walla Walla against H. H. Hungate, as treasurer of Walla Walla county, for an injunction to restrain the collection from complainant of taxes, for the year 1892, upon bank stock assessed against the individual shareholders of the complainant Defendant demurred to complainant's amended bill. B. L. & J. L. Sharpstein, for complainant Miles Poindexrer, for defendant. HANFO;RD, District Judge. The amended bill of complaint shows that for the year 1892 the assessor of Walla Walla county assessed the individual shareholders of the complaining bank separatelyfor a certain number of shares of First National Bank stock, and unjustly discriminated against said shareholders by valuing their shares at 300 per cent of the face value, which is considerably
FIRST NAT. BANK V. HUNGATE.
above the actual cash value of said complainant's stock, while a large amount of other moneyed capital in the county owned by individual citizens of this state was intentionally omitted from the assessment roll, and permitted to entirely escape taxation. The bill also alleges that one of the shareholders applied at the proper time to the county board of equalization to reduce the assessment on his shares, and that the board refused to make any reduction, or in any manner correct the inequality of said assessment, and at the same time made a declaJration of a general policy to refuse to change the assessments affecting bank stock, and to not accept any tender that might be made 9f less than the entire amount of tax levied thereon. After levy of the tax, the same shareholder tendered to the county treasurer 60 per cent. of the amount of the tax on his shares in full payment, which was refused. The tender has not been kept good by deposit, but in the bill the bank offers to pay such pormon of the taxes levied as this court may adjudge legal and collectible from the bank. The laws of this state in force at the time of said assessment made all banks therein agents for their respective shareholders, and authorized the collection from each bank of taxes upon its stock assessed against it as such agent. 1 Hill's Code, §§ 1038-1040. Compliance with the provisions of this statute is prerequisite to enforcement of obligations and the exercise of rights created thereby. The complainant is not charged upon the assessment roll as agent for its shareholders, nor charged at all for any tax upon its stock, nor even referred to by its proper corporate name in the assessments against its several shareholders; therefore the warrant to the tax collector confers no authority upon him to seize the property of the bank for the purpose of enforcing payment of taxes charged against the individual shareholders; and the law does not authorize the bank to pay said taxes, and charge the same against the shareholders. Unjust discrimination in the valuation of national bank stock, as compared with the assessment of other moneyed capital in the hands of individual citizens of the state, is prohibited. Rev. St. U. S. § 5219. Shareholders of national bank stock have this statute as a guaranty that they cannot be taxed upon their stock heavier than other moneyed capital in the state; and, when appealed to in -their behalf, the courts are bound to give effect to the law. If inequality is shown to the prejudice of shareholders, either the assessment must be declared to be entirely void, or at least the excess of the tax above the rate imposed upon other moneyed capital must be abated. People v. Weaver, 100 U. So 539; Pelton v. Bank, 101 U. S. 143; Cummings v. Bank, ld. 153; Boyer v. Boyer, 113 U. S. 689, 5 Sup. Ct. 706; Puget Sound Nat. Bank v. King Co., 57 Fed. 433. A court of equity is the proper forum to grant relief; and an injunction is the proper remedy. Cummings v. Bank, supra. Taxpayers against whom unjust discrimination has been attempted by county assessors in this state are not precluded from obtaining relief in a court of equity by failure to exhaust the means of redress afforded by the laws authorizing the county commission-
This involted in of Co., Pac. 409. In that case the an injunction to ataxpayer who alleged that, by" of assessin,g, the mortgages relatively higher thaD: the valuatiol:l placed upqb.',Qther kinds of property, and held, tha,tJl.court shouldJlot be called upon to perform the labor of entire ass¢StSwent roll,,/Wd that the complainant, indelaying until afWl', the tax'J1)I1 had been made, and taxes 'have applied to the board of COUllty commissioners to equalizeihe assessIT,lents, and, if ag'grieved by an erroneous of the,board, he ahould have sought to the"court, unMr then in force,au· thorizinga:p)'lppeal from My' order Or decision of the county commissioners. ''!'he opinion of t#e supreme court shows that the question whether,theplaintifi adequate remedy than the one invoked was considered. The lower court was reversed, and it was distinctly held, that a general rule or method of assessing property for taxation, ,Which operlltes to discriminate against and, unduly burden any particular class of property, is unlawful in this state; that an according to sucJ+ rule or method is in fact fraudUlent, and that all aggrieved party is entitled to an injunction to prevent thecdUection of a tat levied upon such unlawful and fraudulent assessment. The deciaion of the supreme court must therefore be understood as declariD:g that the law vesting in the board of .<;ounty commissioners power to equalize assessmentfl, does not provide an exc1usiveremedynor limit the power of a court of equity. According to that decision. ,the plaintiff would be clearly entitled, by laws of this state, tqtQ.e 'telief pf9,yeq for, if this suit had been brought in a court of the state, and the same remedy should be avail. .'. . ' ,. . 'able. Under the in the amended bill, failure to make a legal tender, aJ!.d :keep. it good, does not constitute a bar to relief in equity. The complainapt is not called upon to make a tender, for the reason 'that it is .not liable for anypar:t: of the tax, there being no aSl::lessment against the bank. Moreover, a tender of less than.the whble tax le+ied)Yo'q.ldbe useless. If'the bank were legally liable fo!;' part of the tax, it would be excused from making a tender by the de.claration of the board of county commissiollPrs to, not accept less'than the. whole amount levied, which is nothing less than a of a to accept. a tender. 'l'he foregoing are my conclusions touching the several questions argUed by counsel, and I thereby to the demurrer.· .,
GLENN' v. RQOSEV'ELT et at.
(Circuit Court, S.D. Ne\v York. July 17, 1894.)
EVIDENCE-COMPARISON OF HA:N:DWRITING.
Laws N. Y. 1880, which provides that comparison of n disputed wl'iting with any. writing proved to the satisfaction of the court to be genuine shall be permitted to be made "by witnesses," and that "such