Branch v. The United States.

tion 995. When such money is deposited with the Treasurer, or an assistant treasurer, where it is mingled with the public money, it is undoubtedly intrusted to the custody of the government, but when deposited in a bank, though a designated depositary, it would still seem to be the private deposit of trust funds for the security of which the credit of the bank, and not of the government, is taken.

Whether or not the proceeds of securities taken for the protection of public money simply can be applied to the repayment of deposits to the credit of the courts, either pro rata with the debts due to the government, or after the payment of such debts to the extent of any balance of the proceeds remaining, in case of the failure of a depositary bank owing both classes of deposits, or whether the Secretary of the Treasury may now legally and properly require of designated depositaries securities sufficient to protect court funds as well as public money, and so expressly pledged, or whether it is not rather within the power of the litigants interested and the discretion of the courts themselves, either to require security for such deposits, under the proviso above referred to, or to intrust them wholly to the credit of the corporations, are questions for consideration elsewhere, and not here, and we express no opinion thereon. The judgment of the court is that the petition be dismissed.

CASES DECIDED

IN THE

COURTS OF THE SEVERAL STATES.

McIVER V. ROBINSON.

(53 Alabama, 456.)

Taxation of National banks.

A State statute provided that all property, real and personal, not otherwise specified therein, or exempt from taxation, should be "listed" for taxation. There was an exemption of "all shares of the capital stock of any company or corporation which is required to list its property for taxation." Held, that this exemption did not apply to National banks whose capital was invested in government bonds, and that the shares of such banks were property to be listed.

ETITION for a writ of certiorari to revise the action of Rob

taxes of plaintiff's shares in the First National Bank of Montgomery. The defendant demurred to the petition and the demurrer was sustained.

The petitioner appealed.

Stone & Clopton and James W. Lapsley, for appellant.

Henry C. Semple and D. S. Troy, contra.

BRICKELL, Circuit Judge. The case presents but two questions, which are, it seems to us, free from all difficulty, in view of the decisions of the Supreme Court of the United States, and of the

McIver v. Robinson.

appellate courts of the several States, in which they have been considered. The first of these is, the liability of shares in National banks to State taxation at the place where the bank is located, without regard to the residence of the shareholder; the second is, whether the revenue law of 1868 imposed a tax on such shares, and if imposed, is it at a greater rate than is imposed upon other moneyed capital in the hands of individual citizens of the State?

The acts of Congress under which National banks are organized expressly authorize State taxation of the shares in such banks, at the place where the bank is located, without regard to the domicile or residence of the respective shareholders. Tappan v. Merchants' National Bank, 19 Wall. 490.* The restriction or limitation on the power of the States to impose such taxation, originally fixed, was, not only that it should not exceed the rate assessed on other moneyed capital, but that it should not exceed the rate imposed upon the shares in any of the banks organized under the authority of the State. State banks having been dissolved, or merged into National banks because of the tax imposed on them by Congress, to promote the policy of the National banking system, in 1868, the power of the State to tax was subjected to the sole limitation that it should not impose a greater rate of taxation than was imposed on other moneyed capital. 15 U. S. Stats. 34. Property, real or personal, is the legitimate subject of taxation, because of the protection afforded it by government. The law of the State in which the National bank may be located affords to it, and to its shareholder, the measure of protection extended to the citizen, and to his property. In the absence of positive congressional enactment, the contracts into which the bank may enter are construed and enforced according to the law of the State in which it is located. The courts of the State are open to it as freely as to the citizen. Whatever of profits the shareholder may derive are derived from business transacted in the State, and under its laws. The substantial reason for exempting them from State taxation, which might be urged, is, that they are instrumentalities or agencies of the Federal government, by which some of its most important operations are conducted. If subjected to State taxation, the power could be so exercised as to destroy them, or if not, to embarrass them, and to embarrass the Federal government. That reason was fully considered by the Congress, and against such perversion or *See ante, p. 100.

McIver v. Robinson.

abuse of the taxing power of the States, the banks and the government were guarded. Equality of, and not exemption from, taxation by the State was secured. National Bank v. Commonwealth, 9 Wall. 353 (ante, p. 34); Lionberger v. Rouse, id. 468 (ante, p. 41); Providence Institution for Savings v. City of Boston, 101 Mass. 575 (post).

By the express terms of the act of Congress, shares in National banks are declared personal property. Independent of such declaration, they would have been so regarded. The purpose of the revenue law of 1868, expressed in more than one section, was to impose a tax on all property, real and personal, not specially exempted, taxable by the State. The 6th section enumerates the property to be listed for taxation, specifies all real property, specific personal property, and then concludes, "all other property, real or personal, not otherwise specified herein, or exempt by law from taxation, and its value." Pamph. Acts, 1868, p. 301. The 11th section declares, "that there shall be, and hereby is, levied on all property in this State, real and personal, not herein exempt from taxation, an annual tax of three-fourths of one per cent." Id. 303. There is no exemption of shares in a National bank, or of any corporate property, except of municipal, educational, or religious corporations, or of unsold and uncultivated lands donated by Congress to railroads. There is an exemption of "all shares of the capital stock of any company or corporation which is required to list its property for taxation in this State." Pamph. Acts, 1868, p. 299. This exemption is applicable only to shares of the stock of corporations the capital of which consists of property the corporation is required to list for taxation. The shares represent the interest of the shareholder in such property; and as the property is taxed, to avoid double taxation, the shares are exempt. The capital of the National bank in which the appellant holds shares consists largely, if not entirely, of the bonds of the government of the United States, which the bank is not required to list for taxation, if it consists, and it is almost impossible to conceive that it may, of any property the bank is required to list for taxation, the record does not disclose it. This exemption we cannot suppose has any reference to National banks.

We do not deem it necessary to inquire whether the revenue law of 1868 specifically enumerates shares in a National bank as a subject of taxation. It does not; as we have already intimated, they

State v. Tuller.

are embraced under the general terms, "all other property, real or personal," not specially enumerated or specially exempt. It has not been suggested, nor could it have been, that the tax assessed against the shares of appellant were greater than that assessed on other moneyed capital. To such tax they are liable, and it appears to have been properly assessed.

The judgment of the Circuit Court is affirmed.

STATE V. TULLER.

(34. Connecticut, 280.)

Embezzlement and larceny by officers and servants of National banks. Jurisdiction of State courts of the offense.

A State statute prescribed punishment for any officer or servants of any bank "incorporated by authority in this State" who should purloin, etc., any moneys, etc., belonging to or deposited in such bank. Held, (1) to apply to tellers of National banks; (2) that a teller of such bank could be punished under the statute for purloining property deposited with the bank for safe-keeping, but (3) semble that such teller could not be punished under the statute for purloining or embezzling the property of the bank.* State courts have no jurisdiction of offenses created by act of Congress, and, therefore, such courts cannot punish officers of National banks for embezzling the property of the bank; but State courts can punish such officers for purloining the property of others.t

[NFORMATION for theft and embezzlement.

IN

The first count of the declaration charged, in substance, that the defendant Tuller stole sundry bonds and notes issued by the United States. The second count charged, in substance, that said. Tuller was, on September 4, 1866, a teller in the Hartford National Bank, located in Hartford, Conn., and that on or about said date, while acting as such teller, he fraudulently and feloniously tookand purloined from the banking-house of said bank, and secreted, embezzled and appropriated to his own use, ten other bonds of the United States, which were fully described, the property and estate *See United States v. Taintor, ante, p. 256 and note.

+ See Missouri River Telegraph Co. v. National Bank, post, 401; Newell v. National Bank, post.