#### State ex rel. Second Ward Savings Bank, Respondent, vs. Leuch, City Clerk, Appellant.

*December 13, 1913*

January *13, 1914.*

*Taxation: Assessment of bank stock: Board of review:*Certiorari: *Bank may maintain: Deduction of value of realty: Branch offices: Rebuilding of banking house.*

*1.*In view of the option given by sec. 10576, Stats. 1911, to a hank to pay the taxes on all shares of its stock and charge the sum paid to expenses, any illegal and substantial increase of taxes which tends to prevent the hank from making its shares at- .. tractive in that manner is a special and direct injury to the interests of the hank itself, which qualifies it to maintain an action of *certiorari*to test the validity of the assessment.

2. Whether sec. 1061, Stats. 1911, applies to the assessment of bank stock at all is *doubted.*If it is applicable, its requirements are substantially complied with by the appearance and exami- — nation of the bank officers, the bank being considered the agent of the stockholders so far as the assessment is concerned.

3. Construing it fairly and reasonably according to the manifest intent to avoid double taxation, the provision in sec. 1057, Stats. 1911, that if "the building in which” a “bank maintains — its offices and transacts its business be owned by such bank, the assessed value thereof, including the land on which it is located, if owned by such bank, shall be deducted from the total value of” the shares of stock, includes the branch offices of the bank as well as its main banking house.

4. Although a bank is rebuilding its main banking house and is temporarily occupying rented quarters, it nevertheless “maintains its offices and transacts its business” in the main banking house, within the meaning of the statute.

Appeal from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.

*Affirmed.*

*Certiorari*to reverse tbe action of' tbe board of review of tbe city of Milwaukee in tbe year 1912 in assessing tbe shares of capital stock of tbe respondent bank. Said bank is incorporated under tbe laws of tbe state and bas 10,000 shares of stock with a par value of $100 each. It appeared *494"that tbe bant bas one main banking bouse and two branch offices for tbe receiving of deposits in Milwaukee, and owns tbe real estate on wbicb they stand. In 1912 tbe bank was rebuilding its main banking bouse (wbicb it bad occupied for some years) and was temporarily occupying rented quarters while tbe rebuilding was going on. Tbe assessor assessed tbe value of tbe bank stock at $150 per share, but' refused to deduct fipm tbe gross sum the assessed valuation of tbe real estate on wbicb tbe main banking bouse and the branch offices are situated. Tbe respondent bank appeared before tbe board of review and objected to tbe assessment of tbe bank stock on tb© ground that tbe gross value of tbe said lands and buildings should have been deducted therefrom. Tbe board of review refused to make any deduction, but affirmed tbe assessment made by tbe assessor, whereupon tbe bank brought this action. Tbe circuit court reversed the action of tbe board and held that tbe value of tbe lands and buildings should be deducted from tbe gross value of tbe stock, and from that judgment this appeal is taken.

For tbe appellant there was a brief by *Daniel W. Hoan,*city attorney, and *Garfield 8. GanrigM,*assistant city attorney, and oral argument by *Mr. GanrigM.*

For tbe respondent there was a brief by *Rollin B. Mallory*and *Edward W. Spencer,*attorneys, and a separate brief by *Russell Jaclcson,*of counsel, and oral argument by *Mr. Mallory*and *Mr. Jachson.*

WiNsnow, O. I.

Two preliminary objections are urged wbicb will be briefly considered. It is said (1) that tbe bank cannot maintain this action because of lack of substantial interest in tbe controversy, and (2) that tbe assessment cannot be questioned because the stockholders of tbe bank did not appear before the board and submit themselves to examination. We regard these objections as not well taken.

It is true that tbe assessment of bank stock is made *495against the shareholders, but' such assessments are required to be entered on the assessment roll of the district where the bank is located and separately from the assessment' of other personal property assessable to the owners. Sec. 1042, Stats. 1911. This fact alone would cut little figure on the question, but when it is taken in connection with the provisions of secs. 1057 a and 1057b, Stats. 1911, there seems considerable significance in it. The separation in assessment is evidently made for the purpose of making it possible for a bank to handle and pay all the taxes on its stock at one payment and charge the payment up to the general expense account, or at its option make the proper charge on its books against each stockholder for the amount paid on behalf of that stockholder. Sec. 1057a provides that the taxes levied shall be a lien upon the 'shares on which they are levied, which may be enforced by levy on the stock and sale thereof by the officer in the same manner in which corporate stock is levied upon and sold under an execution. Sec. 1057b provides that the bank itself is authorized to pay the taxes and have a lien on the shares for the amount paid, as well as for costs and expenses incurred, or may at its option pay the taxes for all stockholders in such bank out of its earnings or other available resources as the expenses of such bank corporation.

It' does not appear in the present case whether the bank proposes to exercise the option given to it in the section last cited, although the inference would seem to be strong that it does; but however this may be, it has the undoubted right to do so, and in view of that legal right the question whether the bank suffers any special and direct injury by an illegal increase of taxation upon its shares of stock is to be considered. It is clear that in one sense any substantial increase of taxation on the shares of an incorporated bank is an injury to the corporation itself as well as to the separate interests of the stockholders. Every corporation is directly interested *496in the value of its shares of stock, and anything which tends to reduce that value is inimical to the interests of the corporation. In addition to this general injury, we have in the present case the fact that the bank has the option to pay all the taxes and charge the sum paid to expenses. The fact that the bank has this right and exercises it unquestionably operates to make its shares more attractive in the market, and any illegal and substantial increase of taxes which tends to prevent the bank from making its shares attractive in this manner must, we think, be considered a special and direct injury to the interests of the bank itself, which qualifies it to maintain this action. *State ex rel. Milwaukee Med. College v.*Chittenden, 127 Wis. 468, at page 497 (107 N. W. 500).

The considerations just stated go far to answer thensecond objection. If the bank be directly interested in the action of the board, it would follow logically, if not necessarily, that in the absence of some express statute to the contrary, it ought to have the right to review that action on *certiorari.*But it is said that the provisions of sec. 1061, Stats. 1911, prevent any review of the board’s action in the present case. This section, after providing for the review of the assessor’s roll by the board of review and for the appearance before the board of any person dissatisfied with the assessor’s valuation, provides in substance that no person shall in any action be allowed to question the valuation of personal property assessed to him unless in person or by agent he shall have first presented his objections before the board and presented evidence in support thereof, and made full disclosure under oath of all his personal property liable to assessment in the district. The claim is that, as the stockholders have not appeared before the board, the assessment is not now open to question. A sufficient answer to this contention is that the bank must logically be considered as the agent of the stockholder so far as the assessment of bank stock is concerned, and that the officers of the bank appeared and submitted themselves to examination.

*497It may well be doubted whether this section applies to the assessment of bank stock at all, because that assessment must be made at the home of the bank, which is often at great distance from the. home of the stockholder, and it would be manifestly very burdensome, if not unreasonable, to require such a stockholder to travel to the assessment district where the bank is located and there submit to examination. If, however, it be conceded that the section applies to assessments of bank stock, we think its requirements have been substantially complied with by the appearance and examination of the bank officers..

As to the merit's of the controversy, we think that the judgment of the trial court was clearly right. Sec. 1057, Stats. 1911, provides that “If the building in which such bank maintains its offices and transacts its business be owned by such bank, the assessed value thereof, including the land on which it is located, if owned by such bank, shall be deducted from the total value of such ^shares.” Sec. 1057c provides that the taxation of the shares of stock shall be in lieu of all taxes upon “the capital, surplus, property and assets . . . except that no real estate owned by-any bank ... or constituting the whole or any part of its capital, surplus or assets shall be exempt from taxation.”

The object of the provision in sec. 1057 providing for the deduction of the value of the bank’s banking house and site, if owned by it, from the gross valuation of the shares of stock is not to exempt the real estate from taxation, but simply to avoid double taxation. The banking house and sitéis taxed as real estate, but it_is a part of the assets of the bank and so. enhances to that, extent the value of the bank stock, and thus would be taxed again 'in the taxation of the stock if it were not for this provision. Such a statute calls for fair and just rather than restricted construction. While the statute refers to *'‘the*building,” it is very plain that' the idea was that the real estate which the bank owned and was utilizing to carry on its business was not to *498be taxed twice. Doubtless the contingency that the bank might have a main banking bouse and a branch office had not occurred to the persons who drafted the statute, but the bank as truly “maintains its office and transacts its business” at the branch office as at the main banking house, if it may legally maintain a branch office; and it cannot be claimed that it may not do so in view of the fact that the branch office was existing at the time of the passage of ch. 135, Laws of 1909. We reach the conclusion that under a fair and just construction of the law in view of the object to be accomplished, the branch office is included within the clause in question as fully as the main banking house.

The same considerations are practically decisive upon the second contention made by the appellant, namely, the contention that because the bank was rebuilding its main banking house and temporarily occupying rented quarters during the work of rebuilding it did not maintain its office and transact its business there within the meaning of the statu.;e. The mere temporary interruption in the active use of >ae building for banking purposes, caused by the making of necessary repairs or enlargements to meet the demands of the business, should not in reason be held to make any (difference in its legal status under the statute in question. homestead remains a homestead notwithstanding a removal therefrom by the owner if the removal be for a temporary purpose merely, with intention to re-occupy. *Bartle v. Bartle,*132 Wis. 392, 112 N. W. 471. The situation here is quite analogous. Other analogous situations might be referred to, but it docs not seem necessary. Construing the law fairly and reasonably according to its manifest intent, we find no difficulty in concluding that the value of the main banking house and the land on which it stands should have been deducted from the gross valuation of the shares of stock-

*By the Court.*— Judgment affirmed.