
    [No. 3556.
    Decided December 8, 1900.]
    Citizens' National Bank of Dayton, Respondent, v. County of Columbia et al., Appellants.
    TAXATION — ASSESSMENT OF BANK STOCK — ACTION FOR RELIEF-PARTIES.
    In the listing of shares of capital stock in a banking corporation and in the payment of taxes thereon, the bank is constituted by law a trustee in behalf of the shareholders, and hence, under Bal. Code, § 4825, which provides that a trustee of an express trust may sue without joining the person for whose benefit the suit is prosecuted, the bank may maintain an action in its own name for the purpose of securing relief against excessive taxation of its capital stock.
    SAME-JUDGMENT ON PLEADINGS-NECESSITY OE PBOOF.
    Where defendant refuses to answer after the overruling of its demurrer to the complaint in an action for relief against excessive taxation, the court is justified in entering judgment upon the pleadings without the taking of testimony, under Bal. Code, §5090, which authorizes judgment for failure to answer and requires proof of any fact, only in cases where it is necessary to enable the court to give judgment, or to carry the judgment into effect.
    SAME-DEFENSES-WANT OF OBJECTION TO EQUALIZATION-EXCUSES.
    The failure of plaintiff to go before the board of equalization and secure a reduction of its assessment is not ground for refusing it relief, when the assessment was fraudulently increased without its knowledge by the assessor, after that officer had stated to it that its property would be assessed at the same value as in the preceding year.
    Appeal from Superior Court, Columbia County.— Hon. Melvin M. Godman, Judge.
    Affirmed.
    
      
      Will H. Fouts, Prosecuting Attorney, for appellants.
    
      Sturdevant & Brown, for respondent.
   The opinion of the court was delivered by

Dunbar, C. J.

The respondent is a national bank, and, as plaintiff, filed in the superior court of Columbia county its complaint, alleging, among other things, -its corporate existence under the laws of the United States, the names of the various shareowners of the bank, with the shares owned by each shareholder, and the value thereof. The complaint continues:

“5. That plaintiff is the owner, and was so on the first day of March, 1898, of real estate in Columbia county which was valued and assessed by the assessor of said county in the year 1898 at the total value of $2,870, and which was the aggregate reasonable value of said real estate at the time of making said assessment.
6. That the assessed valuation, assessed upon said-shares of stock in the year 1897 was in the aggregate $29,500, and their fair and full value in money on the first day of March, 1897, would not in 'the aggregate exceed that sum. That the proper time for the assessing of real and personal property in said county, the cashier of plaintiff made and delivered to the assessor of said county in 1898, on or before the 15th day of March in said year, a statement verified by his oath, showing the name of each shareholder, with his residence, and- the number of shares belonging to him at the close of the business daj’ next preceding the first day of March, 1898, as the same appeared on the books of said bank (this plaintiff).
7. That, at the time of making out of the said statement by the cashier as aforesaid to the said assessor as aforesaid, and at the time the said assessor made the assessment upon the shares of stock as aforesaid, the said assessor informed the plaintiff that the assessment he would make upon said shares of stock would be the same as that made thereon in the year. 1897, and that it would not exceed the amount assessed thereon for the year 1897; that plaintiff, relying upon said representation and information as aforesaid that the said assessor would assess said stock at the same valuation as in 1897, or not exceeding that valuation, and having no notice of the valuation placed on said stocks hy the said assessor, did not go before the board of equalization and ask for a reduction of said assessment.
8. That the said assessor did not assess the said stock at $29,500 in his said assessment of 1898, as he had informed the plaintiff, and as plaintiff believed he would do, but assessed it for a much larger sum, to-wit, the sum of $40,000; that plaintiff did not know of such exorbitant valuation until a long time after said board of equalization had adjourned, to-wit, on the 7th day of April, 1899.
9. That full and fair value in money on the first day of March, 1898, of said stock and the shares of stock in the aggregate would not exceed the sum of $29,500, after deducting therefrom the value of the real estate then belonging to plaintiff aforesaid.”

The plaintiff further alleges the tender of the amount of taxes due, on the basis of the valuation agreed upon with the assessor, and brings the same into court as a continuing tender, and prays that the sum of money so tendered be adjudged the whole sum due and unpaid as taxes on the said shares of stock. A demurrer was interposed to the complaint and was overruled. A motion was then interposed, which was also overruled. Judgment was entered in accordance with the prayer of the complaint, and an appeal was taken hy the county of Columbia.

There are but two questions raised by the record in this case: (1) Did the complaint state a cause of action? and (2) Was the court authorized to enter judgment upon the pleadings? It may be here stated that, upon the overruling of the demurrer, the defendants refused to plead, and judgment was entered upon the pleadings. It is the contention of the appellants that, under the provisions of the Code for the bringing of actions by parties in interest, this complaint did not state a cause of action; that the shareholders, and not the bank, were the real parties in interest, and the only parties who could sustain this action. Section 4824, Bal. Code, provides that “every action shall he prosecuted in the name of the real party in interest, except as is otherwise provided by law.” Section 4825 provides that “an executor or administrator, or guardian of a minor or person of unsound mind, a trustee of an express trust, or a person authorized by statute, may sue without joining the person for whose benefit the suit is prosecuted.” We are satisfied that the bank here had authority to sue under the last section quoted, if, ind'eed, it did not under the first. A bank is composed of its shareholders, and, while the law assesses the shares to the shareholders, it imposes upon the bank the duty of making out and delivering to the assessor of the county in which the bank is located a statement, verified by the oath of the cashier of said bank, showing the name of each shareholder, with his residence and the number of shares belonging to him. It is also the duty of the bank, under the law, to pay the tax collector the taxes authorized by this assessment when they become due, and the taxes are made a lien upon the real estate of the bank. If the bank is liable for the payment of the taxes, and the law imposes upon it the duty of paying them, then a trust is imposed upon the bank by the law for the payment of the taxes, and the bank could properly bring the action under § 4825, supra. As a practical fact, the assessor goes to the cashier of the bank to obtain his data. In fact, it frequently occurs that the owners of the shares are non-residents, and the tax could not be collected in any other way.

It is urged by tbe appellants that tbe shareholders would have a right to bring this action, and that they would have a right to go before the board of equalization to resist the raising of their assessment. It may be that this is true, but it is not necessary to determine that question in this case. The law certainly has constituted the bank the trustee of the shareholders for the purpose of returning the assessable property to the assessor, and of paying the taxes on the same to the collector.

It is urged by the appellants that, under the provisions of the Code, the court should have taken testimony before entering judgment in favor of-the respondent; but we think, under the provisions of §5090, Bal. Code, the court was justified in entering judgment upon the pleadings.

Some argument seems to be based upon the fact that the respondent did not go before the board of equalization to obtain a reduction of the assessment, but under the allegations of the complaint, which are not controverted, the respondent was misled by the statement of the assessor. When the list was furnished to the assessor, and he stated to the respondent that the property would be assessed'at the same value that it was the year before, we think it had a right to rely upon that statement, and a fraud was perpetrated upon it when the assessment was raised. Belying upon the statement of the assessor, it had no notice that the assessment was raised; for the law provides that, when the board of equalization raises the assessment as made by the assessing officer, notice must be given to the tax payer. In this instance no notice was given, because the assessment was not raised by the board of equalization and the respondent had no opportunity to review the action of the assessor.

The judgment is affirmed.

Reavis, Anders and White, JJ., concur.  