Opinion
Nos. 19998 and 19999
Decided June 1, 1927.
Taxation — Banks and financial institutions — County auditor cannot investigate records to correct tax returns — Statutes in pari materia — Sections 5401 and 5624-13, General Code — Bank cashier cannot be compelled to produce records or testify, when.
1. Section 5401 and Section 5624-13, General Code, are in pari materia and should be so construed. The formercan be harmonized with the latter and each of them given effect by the withdrawal of banking and financial institutions from the procedure authorized by Section 5401, General Code.
2. Section 5624-13, General Code (107 O. L., 44), the later act, provides that nothing in the act of which it is a part shall be so construed as to authorize a county auditor "to examine the accounts or records of any banking" institution. Under the provisions of that section, the cashier of a bank is immune from punishment, as for contempt, because of his refusal to produce the bank records under his control, or to give testimony as to what such records show relating to the state of the account of one of its depositors.
ERROR to the Court of Appeals of Hamilton county.
On January 5, 1925, Hess, the county auditor of Hamilton county, summoned Smith, who was the cashier of the Citizeiis' National Bank, requiring the latter to appear before him to testify under oath relating to the bank balances of a person, then deceased, on the tax-listing days during the years 1919 to 1924, inclusive. The cashier refused to respond to this notice on the advice of the bank president. Thereupon, acting under Section 5401 et seq., General Code, the county auditor applied to the probate court, requesting that court to issue a subpoena for the appearance of the cashier directing him to bring and produce writings under his control showing the balances on deposit to the credit of the decedent on said tax-listing days. Summons was accordingly issued by the probate judge and served upon Smith, who appeared before the probate court. He testified that he was cashier of the Citizens' National Bank Trust Company and had general charge of the bank books showing who its depositors were, and that he could find out the information required if it was in the bank. He further testified that he could not know what the bank balances were on the tax-listing days without making an investigation, of the bank records, and that he had no information in respect thereto at the time of testifying. He declined to produce decedent's balance in his bank on above tax-listing days, but admitted that the bank records would show whether the decedent was a depositor.
Thereupon counsel for the auditor stated to the court that he would like to have a subpoena issued forthwith, requiring Smith, cashier, to "bring the books of the bank, and have him testify as to the contents." The court responded:
"There is a question whether or not they can take the books of the bank and bring them to the courthouse."
But at the instance of counsel for the auditor a further summons was issued and served upon the cashier, requiring him to give evidence relative to the bank balances on such tax-listing days, "and to bring with him and produce at the time and place aforesaid any book, writing, or other thing under his control showing balances on deposit to the credit of * * * deceased." This summons was served upon Smith, and the cause continued until a later time, when Smith, cashier, again took the witness stand. He then testified that he had control of books showing deposits and balances to the credit of individuals of the Citizens' National Bank Trust Company, but that he did not bring them into court in response to the summons. The cashier was then asked the following question:
"Q. I will ask you to produce any books, writings, or other things under your control showing the balance to the credit of * * * [the deceased] on the following dates * * * [the tax-listing days of the years 1919 to 1924, inclusive]; and ask you to testify as to the balances, if any, those records show on any or all of the abovementioned dates."
The cashier refused to answer because he was advised by counsel not to do so. Thereupon counsel for the auditor asked the court to commit the witness for contempt for failure to answer the questions which the court ordered. The cashier still refusing to comply with the order of the probate court, that court ordered him to "be committed to the jail of Hamilton county for refusing to answer above-stated question, there to remain until he submits to testify, giving the balance if any, and producing the records requested."
The court of common pleas reversed the judgment of the probate court, and the judgment of reversal was affirmed by the Court of Appeals, whereupon error was prosecuted to this court.
In the companion case, No. 19999, the cashier petitioned the judge of the common pleas court, asking for a writ of habeas corpus, and alleging that he was illegally restrained and deprived of his liberty by virtue of said order of commitment of the probate court. The sheriff answered setting up the order of commitment, in which appeared the fact that Smith was cashier of the bank, and also the form of the question which he was required to answer, as detailed in case No. 19998. The order of commitment recited the refusal of the cashier to answer the question and adjudged that the cashier should be committed to the jail of the county, "there to remain until he submits to testify, giving the balance if any, and producing the records requested," or until he complies with the order to answer such question.
The cause was submitted to the common pleas court, which ordered the discharge of the cashier from his detention. The judgment of the common pleas court in that respect was affirmed by the Court of Appeals, whereupon error was also prosecuted to this court from the judgment of affirmance in the habeas corpus case.
Mr. Edward C. Turner, attorney general, Mr. Virgil H. Gibbs, Mr. Charles P. Taft, 2d, prosecuting attorney, and Mr. Augustus Beall, Jr., for plaintiff in error.
Mr. Murray Seasongood and Mr. Lester A. Jaffe, for defendant in error.
Various objections were assigned at the hearing, by counsel for the cashier, against the right of the county auditor to proceed with the examination of the witness; these objections were presented to the probate court, and have also been urged and argued in this court. We content ourselves, however, with the disposition of the case upon the major and most vital question presented by this record, and that is, Was Smith, the cashier, immune from punishment, as for contempt, for his refusal to produce the bank books under his control showing the decedent's balances on the tax-listing dates, or for his refusal to "testify what balances if any, these records show" on such dates?
The salient facts shown by the record are that Smith was the cashier of the Citizens' National Bank Trust Company, and had general charge of the books. He personally did not know what such balances, if any, were, but could have ascertained such, if any existed, from an examination of the records. At the hearing, the court asked him this question:
"Mr. Smith, do you know without making an investigation what the bank balances of * * * [the decedent] were on the day set forth in this subpoena?"
The answer was "No." It thereupon definitely appears that whatever information the county auditor or the probate court might have obtained in the proceedings instituted would have been information derived from examination of the bank records under the subpoena duces tecum, or from the witness testifying to the information, if any, therein contained. The county auditor relies on Section 5401, General Code, as his authority to compel divulgence of this information. This section has existed in its present form since its adoption in 1910, and was originally enacted, substantially as it is now, in Volume 56, Ohio Laws, 191. Were there no later legislation upon the subject, the county auditor might well have claimed authority to pursue such procedural remedies as therein proscribed. Although that statute has not been repealed in terms, it became ineffective, so far as relates to banking institutions, by reason of later legislation covering the same subject-matter.
In construing statutes in connection with laws in pari materia, or relating to a particular subject, special and later provisions should, when possible, be given a construction which will harmonize with general provisions upon that subject. This is the rule applied in City of Cincinnati v. Connor, 55 Ohio St. 82, 89, 44 N.E. 582. When so construed, Section 5401, General Code, can be read in harmony with the later Section 5624-13, General Code, and each of them given effect by the withdrawal of banking and financial institutions from the procedure authorized by Section 5401, General Code. Section 5624-13, General Code (107 Ohio Laws, 44), is the later enactment, and forms part of an act which deals with the listing of property and with the duties of taxing officials. That section provides that county auditors and other taxing officials may examine the records in various public offices, and requires such public officers to furnish information of all matters of record, or on file, as may be wanted by the county auditor and other taxing officers. The section contains the following provision:
"Nothing in this act shall be construed or held to authorize the tax commission, or any of its agents or employes, or any county auditor or any assessor or board of revision, to examine the accounts or records of any banking or financial institution which is subject to official inspection under the laws of the state of Ohio or of the United States, nor to demand or receive any list of depositors, stock depositors, members or others who transact business in or with such institutions."
Here is an explicit statement to the effect that nothing in the act should be construed as authorizing the county auditor "to examine the accounts or records of any banking" institution. This later act very evidently superseded Section 5401, General Code, in so far as it curtailed the authority of the auditor to examine the books of the bank. The cashier had no knowledge of the deposit balances and could have none, except by an examination of the bank records. It must be conceded that the county auditor had no authority, under the section quoted, to make any direct examination of the bank records. His subpoena of the cashier, and his insistence upon a divulgence of information contained in those records, was an effort to accomplish by indirection that which the statute does not permit to be done directly. It amount to an involuntary examination of the bank records through the medium of the cashier.
Counsel for the auditor contend that Section 5624-13, General Code, applies only to the denial of a general and indiscriminate examination of bank records in an effort to pursue a fishing excursion for delinquent depositors. We cannot so narrowly construe said statutory provision. The section is much more comprehensive in its terms. It plainly provides that it shall not be so construed or held to authorize the county auditor "to examine the accounts or records of any banking" institution, etc., nor to demand or receive any list of depositors. It is very evident in this case that if the books were produced, as required by the court, there would be an examination of the records of the bank in contravention of the statute.
With the policy or wisdom of this more recent legislation we have no concern. Manifestly, it sought to secure the privacy of the records of banking and financial institutions and to make them immune from examination by taxing officials.
The judgment of the Court of Appeals in the error case is affirmed.
Since the error case has been disposed of upon its merits, we do not deem it advisable to consider the habeas corpus case. The question there raised, in view of this disposition of the error case, becomes a moot question, and the petition in error in case No. 19999 is dismissed.
Judgment affirmed. Petition in error dismissed.
DAY, KINKADE and MATTHIAS, JJ., concur.