Providence Institution for Savings and Jewell v. City of Boston.

from beginning to end, and cannot be enforced against owners of bank stock, whether resident or not resident in the State, nor in fact against any owners of property whatever.

It is true, that under the operation of the statute, a part only of the taxable property of the Commonwealth is made to pay the whole of the county tax, the city and town tax, and also the whole amount of what is annually voted by the Legislature specifically as the State tax, so far as these three descriptions of tax are assessed upon property and not upon polls. The money obtained from the assessment of bank stock belonging to non-resident owners does not make any part of either one of these three descriptions of tax. But, although not known as the State tax eo nomine, it is nevertheless a tax for the use and benefit of the State. It goes into the public treasury, and makes a part of the annual ways and means of the State. The effect of the statute, if carried out, would be to furnish the Commonwealth with a regular source of income capable of making a valuable addition to the public revenue, varying perhaps somewhat from year to year, but not subject to any violent or sudden fluctuations, and generally admitting of a reasonably close estimate in advance. We are bound judicially to know the fact that the large amounts annually appropriated by the Legislature for the payment of the expenses of the Commonwealth are mainly supplied by the imposition of the State tax. We are bound also to assume that, in determining the amount of that State tax, the Legislature takes into consideration all the sources of income, from any quarter, which the State has at its command, including among them the tax provided for by this statute, and that the general State tax annually voted is intended to cover deficiencies of revenue, and to provide the necessary ways and means for the varying exigencies of the public service. The acts of Congress have made certain property taxable here, which without these acts might not be so taxable. They have also permitted the Legislature to determine and direct the manner of such taxation. This it has undertaken to do by a statute which provides that the new taxation shall be so managed as to inure wholly to the benefit of the State treasury, and not be applied to merely local and municipal purposes. The statute assumes that, to the stockholder not residing within the State, the appropriation of such a tax is a matter of no interest or importance. It does not concern him, so long as the amount is ascertained on the same principles and the tax is assessed at the

Providence Institution for Savings and Jewell v. City of Boston.

same rate as it would be if he resided in the city or town where the bank is established.

We do not understand the plaintiffs to deny that their shares are proper subjects of taxation in Boston, or to complain that there is any disproportion in the taxation of resident and non-resident shareholders in the same place, as compared with each other. The objection is, that by the operation of the statute they are made taxable at a higher rate, and so for a larger amount, than they would be if they were included in the valuation upon which the rate is to depend. Is this complaint well founded? It is to be remembered that whatever amount may be added to the public revenue by the operation of the statute diminishes to exactly the same extent the amount necessary to be raised by the State, properly and technically so called. The annual resolve for the assessment of a State tax is what, in parliamentary language, is usually called a "deficiency bill." Suppose that, after considering all sources of income other than taxation, the Legislature should find that the sum of $1,200,000 is needed to cover the public expenditures of the State, and that the tax on bank shares belonging to non-residents and provided for in the terms of the statute, would produce the sum of $200,000 annually? And here it may be repeated that these figures are assumed arbitrarily, and merely as illustrative of the argument. Upon these figures a tax of $1,000,000 would supply the deficiency. But, if the statute were to be repealed or pronounced unconstitutional and void, and the law so far changed that the bank shares belonging to non-residents should be included in the municipal valuations, and taxed as other property of the same kind is taxed, the State would lose from its annual revenue the sum of $200,000. The valuations which form the basis of taxation would be increased by the addition of property producing $200,000 in taxes annually. The county and municipal taxes, not being increased, would be assessed upon a larger amount, and of course at a lower rate; but the State tax, on the other hand, would be raised from $1,000,000 to $1,200,000. The general result would be, that the tax payers would pay exactly what they did before, with not the slightest change of rate or proportion. In either mode of taxation, the taxable property would pay into the treasury of the State exactly the same sum, namely, $1,200,000. The non-resident stockholders, as a class, do not appear, then, to have any cause to complain that the tax upon them as such, under our statute, is not proportional; and we find

Providence Institution for Savings and Jewell v. City of Boston.

nothing in the agreed facts that distinguishes these plaintiffs from other non-resident owners generally.

There is a provision in the statute, that, in assessing such shares, there shall be a deduction of a proportionate part of the value of the real estate belonging to the bank. To that extent the nonresident stockolder is privileged and favored, as there seems to be no law requiring or permitting any such allowance in favor of stockholders residing in the State. This disproportion was not alluded to in the argument, and no importance, as we suppose, was intended to be attached to it. It certainly is not one of which these plaintiffs can reasonably complain.

The conclusion, then, at which we arrived is that the statute of 1868, chapter 349, does not transcend or conflict with the limitations expressly set forth in the acts of Congress; that practically, it produces no appreciable disproportion among tax payers as compared with each other; that the omission of the shares of nonresidents from the town valuations produces no actual want of due proportion, for the reason that the general result of the taxation, supposing the statute to be held valid, is substantially identical, to each tax payer, with what it would be if the shares of non-residents were included in those valuations, and taxed in the same manner in all respects as the real estate of non-resident owners is taxed; and that, although in one mode of proceeding the sum total of the valuations is less than in the other, yet the aggregate of the amount to be raised under the heads of county, municipal and State taxes is diminished in exactly the same proportion.

As to the objection that it is retrospective in its operation, it seems to be enough to say that, under the acts of Congress, the property was certainly taxable in such lawful manner as the Legislature of the Commonwealth should direct. Whoever, then, on the 1st day of May, 1868, held such property knew, or was bound to know, that it was taxable like other moneyed capital as of that day, in such manner as by law might be provided.

We do not find, in the various objections taken on behalf of the plaintiffs, and so ably and forcibly urged by their learned counsel, any thing that convinces us that the statute ought to be pronounced unconstitutional, or that the tax imposed in pursuance of it is unlawful and void. And according to the terms of the agree ment there must be, in each case,

Judgment for the defendant.

Hungerford National Bank v. Van Nostrand.

HUNGERFORD NATIONAL BANK V. VAN NOSTRAND.

(106 Massachusetts, 559.)

National banks - Evidence of incorporation in suits by.

In an action by a National bank against the maker of a promissory note, the fact that the note is made payable at the plaintiff bank is not conclusive evidence that such bank is a corporation.*

CON

ONTRACT by the Hungerford National Bank, alleged in the writ to be "a corporation duly established by law at Adams, in the State of New York," on two promissory notes signed by the defendants, each "payable at Hungerford National Bank, Adams," to the order of Rufus P. White, and by him indorsed to the plaintiffs. The answer denied all the allegations of the declaration.

At the trial in the Superior Court, before LORD, J., the signatures of the defendants and of White on the notes were admitted, and there was some evidence, which it is unnecessary to state in detail, that the plaintiffs were a corporation, and also other evidence now immaterial. The defendants contended that the plaintiffs were not a corporation

The judge ruled "that there was sufficient evidence for the jury to find the organization for the plaintiff corporation;""that the whole evidence was insufficient to show either payment of the notes, or that the plaintiff took them subject to the equities between the original parties; and that there was not sufficient evidence in the case to warrant the jury in finding a verdict for the defendants; "

*In Washington County National Bank v. Lee, 112 Mass. 521, a National bank brought an action, describing itself as "the Washington County National Bank, a corporation duly established by law, and doing business in Greenwich, in the tate of New York," and to prove its corporate existence, introduced an organization certificate of "The Washington County National Bank of Greenwich," to be located. . . . in the town of Greenwich, county of Washington and State of New York," and a certificate of the Comptroller of the Currency that "the Washington County National Bank of Greenwich, in the county of Washington, and State of New York," had been duly organized. Held, that in the absence of evidence of the existence at Greenwich of another bank named "the Washington County National Bank of Greenwich," the evidence would warrant the inference of the plaintiff's due organization. See Thatcher v. West River Nat. Bank, post.

First National Bank of Rochester v Harris.

and ordered a verdict for the plaintiff for the amount of the notes and interest. The defendants alleged exceptions.

N. Morse, for defendants.

G. W. Ware, Jr., for plaintiffs.

WELLS, J. The answer put the plaintiff to the proof of every fact necessary to the maintenance of the action. One fact to be proved was the organization or corporate existence of the plaintiff. There was some evidence upon that point, but it was not conclusive, so as to enable the court to determine it as a matter of law. The notes were not made payable to the bank as a party. The bank is mentioned only as the place of payment. That does not necessarily indicate a corporation established under that name.

In ordering a verdict for the plaintiff, the court, no doubt inadvertently, overlooked this question of fact, which, upon the evidence in the case, the burden being upon the plaintiff to establish it, must necessarily be submitted to the jury.

Exceptions sustained,

FIRST NATIONAL BANK OF ROCHESTER V. HARRIS.

(108 Massachusetts, 514.)

National banks may buy checks - Delay in presenting check for payment.

A National bank has authority to buy checks of individuals on other banks, whether payable to bearer or to order.*

A check drawn in Boston on a bank in Boston was sent by mail to Rochester, N. Y., and there bought by a National bank four days after its date and two days after was presented for payment. Held, that there was no unreasona ble delay, and that the buyer was not subject to equities existing between the original parties.

A

CTION by the First National Bank of Rochester against Harris & Company on a check drawn by the defendants on the Second National Bank of Boston, payable to the order of Johnson & Company and indorsed in blank by them.

*See First National Bank of Rochester v. Pierson, post.