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Merchants' National Bank of Toledo v. Cumming.


Taxation of shares -- Unjust discrimination Restraining collection of tax at

suit of bank.

The shares of stock of a National bank were taxed at their full value, while

other property was assessed at from thirty to forty per cent of its real value. Held, that the discrimination was illegal and unjust, and that the bank was & proper party to maintain a bill to restrain the collection of the tax beyond the proportion assessed on other property.

(Circuit Court, Sixth Circuit.)

ACTION by the Merchants' National Bank of Toledo against

| Cumming, collector of taxes, to restrain him from collecting a tax assessed for the year 1876 on the shares of stock of plaintiff's bank. The late Judge Emmons of the same circuit, before his death, granted a preliminary injunction.

Judge Ranney and Tager Swayne, of Toledo, for plaintiffs.

Judge Griswold and F. K. Hamlin, for respondent.

BAXTER, Circuit Judge, made the following memorandum: *

There were several points presented and urged in the argument of this case, on the hearing which, in the view I have taken of it, need not be discussed here. Suffice it to say that, from the pleadings and proofs, it very satisfactorily appears that complainant's capital stock was assessed for the year 1876 at its full value, while all other property was assessed at from thirty to forty per cent only of its real value, and that, by reason of this unequal assessment, complainant's capital stock was in the hands of its shareholders onerated with an undue proportion of the public taxes. It is not important to inquire into the methods leading to such a result. Whether from inadvertence or design, the consequences are the same to the complainant. It is an injustice that contravenes the

*The clerk of the court, in a letter to the reporter of this volume, under date of April 15, 1878, says: “There was no written opinion in the case other than the memorandum herewith inclosed.”

Merchants’ National Bank of Toledo v. Cumming.

Constitution of Ohio, as well as the provisions of the National Banking Law, and a wrong which the courts may, when their powers are properly invoked, take cognizance. of to redress. But the defendant insists that the wrong complained of is a wrong to complainant's shareholders, against whom the tax was assessed, and not against the complainant. This objection seemed, on first impression, to have been well taken, but further reflection induces the belief that it involves the rights of complainant as well as the rights of its corporators. Between the two there is an intimate connection; the legal entity — the corporation - is distinct from the shareholders, but the former is a trustee for the latter, and custodian of corporate funds; and if it shall pay the taxes so assessed, and assume to deduct the same from dividends declared, or to be hereafter declared in favor of its shareholders, it may, and the averment is that it will, subject itself to a multiplicity of suits with its own shareholders; whereas, if it refuses to pay these taxes, it will impair its credit, embarrass its business, and expose itself to vexatious and expensive suits, and entail upon itself irremediable injuries in resisting the illegal exactions made upon it.

Hence, in view of the probable consequences, I have reached the conclusion that the complainant, in its corporate capacity, is entitled to a standing in this court, and to relief, and I shall, therefore, authorize a decree permitting complainant to pay to the defendant, or into the registry of the court, forty per cent of the amount of the tax assessed against its shareholders, in accordance with its tender heretofore made, and, on this being done, an injunction be issued perpetually enjoining the collection thereof. The costs will be decreed against defendant, to be paid out of the money to be realized under decree hereinbefore authorized.




(4 American Law Times Reporter, 240.) HAT National banks could, by by-law, restrain the transfer of

stock by a stockholder indebted to the bank. The Supreme Court of the United States has decided otherwise. Bullard v. Bank, ante, 93.

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(2 Bond, 170.) N this case it was decided that the penal consequence of making

a usurious loan by a National bank is forfeiture of twice the amount of illegal interest, under section 30 of the National Bank Act of Congress of June 3, 1864. The principal debt is not forfeited. Nor does the mere fact that such a loan is prohibited by statute, without any words declaring the contract void, preclude the bank from recovering back the amount loaned.

The point adjudicated in this case has since been settled by the Supreme Court of the United States. See Farmers and Mechanics' National Bank v. Dearing, ante, p. 117.


(8 Internal Revenue Record, 132.) T was held in this case that under section 30 of the National

I Banking Auto Wihes en bantik und ethice charged more that the

legal rate of interest of that State, it forfeited the whole of the

usurious interest, and could have judgment only for the original sum loaned. The act was not intended to work a forfeiture of the whole debt. See Farmers and Mechanics' National Bank v. Dearing, ante, p. 117.


(1 Hughes' Circuit Court, 378.) TTERE, on the trial of a suit at law, brought by the receiver of

a National bank against its stockholders for a contribution of a hundred per cent to meet the liabilities of the bank, under section 5151 of the Revised Statutes of the United States, no evidence was presented to show that the bank was insolvent, or that it was so to the extent of a hundred per cent of its capital stock; but the plaintiff, as to such liability, produced only a letter of the Comptroller of the Currency to the receiver, alleging that he had “ determined that, in order to discharge the legal debts and liabilities of the bank, it would be necessary to enforce and collect the whole amount of the personal liability of the individual stockholders.” It was held that the plaintiff was not entitled to recover, as no proof established by legal evidence had been presented at the trial of the fact that the bank was insolvent, and insolvent to the extent of one hundred per cent of its capital.

It was not decided in the above case that the letter was not properly authenticated or that it was not a sufficient order, but that extrinsic facts must be proved. In Casey v. Galli, ante, p. 142, it was held by the Supreme Court of the United States that the order or determination of the Comptroller is conclusive.


(34 Connecticut, 205.) IT was decided in this case that the voting stockholders of the 1 Phænix Bank had the right, under Conn. Stat. 1863 and 1864, to make a transfer of the assets and re-organize under the National Banking Law. The act of 1863 authorized the voting stockholders to surrender the charter, and upon their doing so, divested the qualified stockholders of all further rights, except their right of equitable ownership in the assets of the deceased institution. The act of 1864 left it optional with the voting stockholders to accept

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