122 U.S. 154

7 S.Ct. 1244

30 L.Ed. 1088


May 23, 1887.

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. 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 for the taxes assessed and collected for the years 1876, 1877, and 1878. The plaintiff then took an assignment of the claim for those taxes from Stanley, and commenced the present action. He contends that the assessment for those years upon the shares of the stock of the bank was illegal, on these grounds: (1) Because it was not made within the period required by law, which was before the first of September of each year, but after that date; (2) because it was not accompaniedb y the oath of the assessors that it had been made at the full and true value of the shares, subject only to certain specified deductions allowed by law; (3) because it was higher, in proportion to the actual value of the shares, than the assessment of other moneyed capital in the hands of individual citizens of the state was to its actual value. The defendant answered these grounds by a general denial, and by setting up an act of the legislature of New York, passed April 30, 1883, legalizing and confirming the assessment.

The issues were tried by the court, without the intervention of a jury, by consent of parties. The court found the facts as admitted by the pleadings and by stipulation of the parties, from which it appeared, among other things, that no entry of any assessment of the shares of the stockholders of the bank was made upon the assessment roll of 1876, 1877, and 1878, until after the first day of September of those years, and after the time provided by law for revising and correcting the assessment; that the oath of the assessors, annexed to the assessment of each year, was defective in its averment respecting the estimated value of the real estate assessed, but was correct in its averment of the estimated value of the personal property; that there were several banks, state and national, located in the city of Albany, and that the actual value of their shares during those years, with one exception, was above par, varying in that respect from 10 to over 100 per cent., and yet the value of all of them was assessed at par; that the actual value of shares in the National Albany Exchange Bank was from 25 to 30 per cent, above par; that the assessment of the shares of some of the other banks was higher and of some of them lower than this figure; and that the assessment at par was not made by the assessors with the intent of discriminating against the holders of national bank shares, or in favor of the holders of state bank shares, or other moneyed capital. As a conclusion of law, the court found that the assessments were illegal because not made in conformity with the laws of the state, but that they were legalized and confirmed by the act of its legislature of April 30, 1883, and that they were not in violation of any law of the United States. 22 Blatchf. 302, 21 Fed. Rep. 99. Judgment was accordingly rendered for the defendant, and the plaintiff has brought the case here for review.

Matthew Hale, for plaintiff in error.

[Argument of Counsel from pages 158-162 intentionally omitted]

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



It may be conceded that the assessment of the shares of the National Al bany Exchange Bank was in some instances higher, in proportion to their actual value, than the assessment of some other moneyed capital in the hands of individual citizens was to its actual value; but, as seen from the findings, such discrimination was not designed by the assessors. It is so stipulated by the parties. Whatever discrimination, in such instances, may have existed, arose from the difficulty of devising any other mode than the one adopted, which would work out greater equality and uniformity in the valuation of different kinds of moneyed capital. There was no proof as to the assessment of any moneyed capital, except shares of other banks, state or national. The value of shares in some of these banks was higher, in some lower, than that of the shares of the National Albany Exchange Bank. The method adopted of assessing all shares at par was generally satisfactory to the owners of the national bank stock in the city of Albany, with the exception of a few stockholders in the National Albany Exchange Bank. Considering the nature of the property, and the frequent fluctuations in value to which it is subject, the method applied to all banks, state and national, came, as we said in the recent case of Stanley v. Board Sup'rs Albany Co., ante, 1234, as nearly as practicable to securing between them equality and uniformity of taxation. All the banks, state and national, being thus placed, as respects taxatio, upon the same footing, the method could not be considered as adopted in hostility to any of them. If it sometimes led to undervaluation of the shares of national banks, the holders could not complain. If it sometimes led to overvaluation of the shares, the aggrieved party could obtain relief by pursuing the course pointed out by the statute for its correction, unless, as asserted, this course was not, in the years mentioned, available to the plaintiff and the stockholders, whose interests were assigned to him, because their names were not placed on the assessment roll until the time provided by law for revising and correcting the assessment had passed. If that course was thus cut off, they could have resorted to a court of equity to enjoin the collection of the illegal excess upon payment or tender of the amount due upon what they admitted to be a just valuation. We have considered this subject so fully in the recent case of Stanley against these same defendants, to which we refer, that it is unnecessary to pursue it further.


The irregularities in the assessment for the years 1876, 1877, and 1878, in that no entry of any assessment of the shares of the plaintiff, and of the stockholders whose claims were assigned to him, was made, on the assessment roll of those years, until after the first of September, and after the time for revising and correcting the assessment had passed, and in the defect of the oath annexed, in its averment as to the estimate of the value of real estate, were, in our judgment, cured by the validating act of April 30, 1883. The power of taxation vested in the legislature is, with some exceptions, limited only by constitutional provisions designed to secure equality and uniformity in the assessment. The mode in which the property shall be appraised, by whom its appraisement shall be made, the time within which it shall be done, what certificate of their action shall be furnished, and when parties shall be heard for the correction of errors, are matters resting in its discretion. Where directions upon the subject might originally have been dispensed with, or executed at another time, irregularities arising from neglect to follow them may be remedied by the legislature, unless its action in this respect is restrained by constitutional provisions prohibiting retrospective legislation. It is only necessary, therefore, in any case, to consider whether the assessment could have been ordered originally without requiring the proceedings, the omission or defective performance of which is complained of, or without requiring them within the time designated. If they were not essential to any valid assessment, and therefore might have been omitted or performed at another time, their omission or defective performance may be cured by the same authority which directed them, provided, always, that intervening rights are not impaired. Such is the conclusion of numerous adjudications by the state courts upon the effect of curative acts, and of this court in Mattingly v. District of Columbia, 97 U. S. 687, 690. Hart v. Henderson, 17 Mich. 218, Musselman v. Logansport, 29 Ind. 533; Grim v. Weissenberg School-Dist., 57 Pa. St. 433. The completion of the assessment roll in the case at bar before the first of September in the years mentioned, and the form of the oath annexed, were not so vital to the assessment itself as necessarily to render the defect arising from a later return or a deficient oath incurable. The completion of the assessment roll by that date was deemed essential by the court below, because the law required the assessors forthwith to cause notices to be published in three of the public newspapers of the city for twenty days, specifying a day at their expiration when they would meet, and remain in session five days for the purpose of reviewing their assessments on the application of any one aggrieved. The requirement was designed to afford tax-payers whose names were on the roll an opportunity for the examination and correction of the assessment of their property. The assessment could not stand if they were deprived of that opportunity. But it is not perceived why it might not be legalized and confirmed by the legislature giving to them such opportunity after the time originally designated had expired. No just right of the taxpayer would thereby be defeated.


The assessment of the shares of the bank for the years 1876, 1877, and 1878 was held invalid for the reason stated, under the laws of the state, although from what we have said it would not be open to objection as being in conflict with the act of congress. It is only in view of its invalidity for want of conformity to the laws of the state that the validating act becomes of importance. That act declares that the assessments contained in the assessment rolls of the wards of the city for the above years are 'in all things legalized and confirmed, subject to the rights of the shareholders, or their personal representatives, in national or state banks which were located in said city, during those years, and the assessments against whom, by reason of their ownership of such shares, were collected by process of law, to claim a deduction from or cancellation of such assessments.' It required the assessors, within 10 days after the passage of the act, to publish in the official papers of the city daily for three weeks, Sundays and holidays excepted, a notice to the stockholders that the assessors would be in attendance at their office in Albany for three weeks subsequent to the last day of publication of the notice, and hear applications for the deduction from the assessments of any amount which such stockholders or their personal representatives would have been entitled to deduct under the law as it existed in the year when the assessment was placed on the roll, had such application then been made. And the act provided that such shareholders, or any one representing them, might appear before the assessors, and apply for a deduction or cancellation of the assessment upon any ground which would have been a legal one when the assessment was placed on the roll, and the assessors were empowered to grant such reduction or cancellation as the shareholders would have been legally entitled to at that time. The act also made provision for the collection and payment to the parties of the amount found to be due them, with interest.


It is difficult to see on what plausible ground the validity of this act can be questioned, unless the power of the legislature to cure by legislative act any irregularities of the assessment be denied. Every right of the shareholder who had paid taxes on the assessment—and it does not appear that there were any others—was secured. He could present any claim he might have for a reduction or cancellation of the assessment, and be heard respecting it. He occupied the same position he would have held if the assessment of his shares had been placed on the assessment roll within the time required,—that is, before the first of September,—and the oath annexed had been without any fault or omission in its averments. The plaintiff and the other shareholders were bound, as owners of property, to bear their just proportion of the public burdens; and if, in ascertaining what that proportion should be, some steps in the proceeding were omitted which invalidated the assessment, it would seem but just that the defect should be cured, if practicable, and the shareholders not be allowed to escape taxation, and thus entail the burden they should bear upon other tax-payers of the community. After the validating act was passed, the plaintiff applied to the assessors for the cancellation of the assessment for the years 1876, 1877, and 1878, or a reduction from the amount assessed. The assessors refused to cancel the assessments, but they allowed a reduction from them to the amount of $2,071.66, which was paid to him.


If follows from the views expressed that the judgment of the circuit court must be affirmed; and it i so ordered.


Affirming 21 Fed. Rep. 99.

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