Page:North Dakota Reports (vol. 48).pdf/857

 been amended, but that does not destroy the reasoning of that case.

Under § 2117, C. L., to secure the payment of taxes on bank stock or banking capital it is the duty of every bank or managing officer or officers thereof to retain so much of any dividend or dividends belonging to such stockholders or owners as shall be necessary to pay any taxes levied on their shares of stock or interest respectively, and the amount of such taxes shall be a lien on the dividends, the capital stock, and the assets of the bank, and, until it shall be made to appear to the county treasurer that such taxes have been paid, any officer of any such bank or its officers, who shall pay or authorize to pay over, or authorize the paying over of any such dividends or portion thereof, contrary to the provisions of this section, shall thereby become liable for such tax. It is clear that the bank can have no liability if it obeys the law; if it disregards the law, and pays over the dividends, then it may become liable, but that would be its own fault and not that of the law. In this case it has paid over no dividends, and therefore is under no liability. If the tax is not paid, what is the procedure? What is to be done? Very plain is the answer. The county treasurer where the bank is located simply sells the shares of stock or interest of each stockholder to pay the same, just the Same as any other personal property would be sold, and, in case of sale, transfers the stock just the same as if it had been sold under execution. It must be kept in mind in this case that the stockholders own all the shares of stock, the capital, the surplus, and undivided profits.

Under § 2116, at all times in every bank there must be kept a full and correct list of the names and residences of the stockholders, the number of shares owned and controlled by each party in interest; this is subject to the inspection of the officers making the assessment, and the cashier of each bank must furnish the assessor with a duplicate copy of all that is required under that section, all of which further shows the plaintiff has no cause of action. Can any one contend that, if the shares of stock, all of which belong to the stockholders, were sold, as provided by law, sufficient would not be realized to pay the taxes? The answer is, Certainly not.

We further say that no other sound or tenable conclusion can be reached than that, even if the law were the same as before chap. 118 was enacted, plaintiff has no cause of action.

Whether the capital stock of state banks is subject to the franchise or excise tax provided by chap. 222 of the Session Laws of 1919, or whe-