National Bank of Redemption v. City of Boston. per cent of the market value thereof, and not exceeding the par value thereof, but the amount of such investments in such bank stocks is specifically limited. (5) In loans upon the personal notes of depositors of the corporation, not exceeding one-half of the amount of the deposit, in which case the deposit is held as collateral security for the payment of the loan. (6) If the deposits cannot be conveniently invested in the modes heretofore named, not exceeding one-third part thereof may be invested in bonds or other personal securities payable at a time not exceeding one year, with at least two sureties, all of whom are to be citizens of the Commonwealth and residents therein. (7) Ten per cent of the deposits of any such corporation, not exceeding $200,000, may be invested in the purchase of a suitable site and building for the transaction of its business. (8) Any such corporation may hold real estate acquired by the foreclosure of any mortgage owned by it, or by purchase at sales made under the provisions of any such mortgage, or for the satisfaction of debts due to it, but all such real estate shall be sold within five years after the title is vested in the corporation. The particular in which the plaintiff in error chiefly insists that the tax imposed upon its shares is at a greater rate than that assessed upon other moneyed capital in the hands of individual citizens of Massachusetts is the alleged inequality existing in favor of that imposed upon savings banks. The contrast of which this inequality is the result is stated to be as follows, viz.: That in 1885 a tax of $1,564,995 was collected upon National bank shares in Massachusetts, of the value of $113,000,000, while upon $163,000,000 of savings bank deposits in the same year there was collected as a tax only $815,930. In view of the state of the question, as fixed by the previous decisions of this court, it is not perhaps very material now to inquire whether this alleged contrast between the taxation of National bank shares and of savings banks in Massachusetts is real or only apparent. There are several particulars which might be mentioned, and which, when properly allowed for, would certainly reduce the apparent inequality. There is only one however which we deem it important to notice. The tax on savings banks is based upon deposits merely. This is because deposits furnish the only capital which VOL. III-39. National Bank of Redemption v. City of Boston. is invested and employed. The institutions themselves, although corporations, have no capital stock, and are managed by trustees, not selected by the depositors, but by public authority. The whole amount of the deposits, with the exceptions noted, are subjected to a tax of one-half of one per cent. On the other hand, the National banks pay a tax assessed upon the market value of the shares as personal property, upon a valuation and at a rate exactly equal to that of all other personal property subject to taxation in the State. But shares of the National banks, while they constitute the capital stock of the corporations, do not represent the whole amount of the capital actually employed by them. They have deposits, too, shown in the present record to amount, in Massachusetts, to $132,042,332. The banks are not assessed for taxation on any part of these, although these deposits constitute a large part of the actual capital profitably employed by the banks in the conduct of their banking business. But it is not necessary to establish the exact equality in result of the two modes of taxation. The question of the exemption from taxation of deposits in savings banks, as affecting the rule for the State taxation of National bank shares, was very deliberately considered by this court in the case of Bank v. New York, 121 U. S. 138, 160; ante 265, and the conclusion reached in that case was reaffirmed in the case of Bank v. Board of Equalization, 123 id. 83; ante 285. In the former case deposits in savings banks in the State of New York to the amount of $437,107,501, with an accumulated surplus in addition of $68,669,001, were exempted by the laws of the State from all taxation, neither the bank itself nor the individual depositor being taxed on account thereof. It was said in that case (p. 161): "However much therefore may be the amount of moneyed capital in the hands of individuals in the shape of deposits in savings banks as now organized, which the policy of the State exempts from taxation for its own purposes, that exemption cannot affect the rule for the taxation of shares in National banks, provided they are taxed at a rate not greater than other moneyed capital in the hands of individual citizens, otherwise subject to taxation." It is impossible, in our judgment, to distinguish the present from the case of the New York savings banks, or those of Iowa considered in the case of the Davenport bank. The princi National Bank of Redemption v. City of Boston. pal distinction indeed, between the case of the New York savings banks and those of Massachusetts, involved in the present inquiry, is that the latter pay a tax of one-half of one per cent on the amount of their deposits, while the New York banks were exempt from all taxation whatever. The argument on behalf of the plaintiff in error indeed seeks to establish another distinction. It is alleged that in Massachusetts, savings banks are permitted to transact a banking business in the way of loans upon personal securities, which assimilates them more closely to National banks, and takes away the reason for the application of the rule to them which was applied to the case of the savings banks of New York. But the difference mentioned, if it exists at all, is immaterial; the main purpose and chief object of savings banks, as organized under the laws of Massachusetts, are the same as those in New York, as considered in the case of the Mercantile Bank. They are substantially institutions, under public management, in pursuance of a great and beneficial public policy, organized for the purpose of investing the savings of small depositors, and not as banking institutions in the commercial sense of that phrase. We adhere to the rule as declared in the cases heretofore decided, which forecloses further discussion as to the present point in this case. A similar objection to the tax in question, founded on a comparison of the taxation of National bank shares with that of insurance companies and trust companies, the American Bell Telephone Company, and the Massachusetts Hospital Life Insurance Company, is equally untenable. Within the definition of that phrase, established in the case of Bank v. New York, 121 U. S. 138; 7 Sup. Ct. Rep. 826; ante 243, the interest of individuals in these institutions is not moneyed capital. The investments made by the institutions themselves, constituting their assets, are not moneyed capital in the hands of individual citizens of the State. People v. Commissioners, 4 Wall. 244; 1 Nat. Bank Cas. 9. It is further contended however, on the part of the plaintiff in error, that the taxation in question is not only at a greater rate than that imposed upon other moneyed capital held by individual citizens, but that it is repugnant to the fourteenth amendment to the Constitution of the United States, because it operates to deny to the tax payer the equal protection National Bank of Redemption v. City of Boston. of the laws, and also that it is disproportionate and unequal, in violation of the provisions of the Constitution of Massachusetts. The two branches of this proposition are equivalent; if the tax is not disproportionate and unequal, within the meaning of the Constitution of the State, the tax payer is not denied the equal protection of the laws within the sense of the fourteenth amendment. The point is fully met by the reasoning and judgment of the Supreme Judicial Court of Massachusetts, in the cases of Institution for Savings v. City of Boston and Jewell v. City of Boston, 101 Mass. 575, 585. Another point to be noticed arises upon the third count of the declaration. It is therein alleged that other National banking associations, some located in Massachusetts and others in the sev eral New England States, are the owners of one thousand four hundred and forty-eight shares of the capital stock of the National Bank of Redemption, on which the amount of tax paid was $2,051. It is urged in argument that these shares are not taxable by virtue of section 5219 of the Revised Statutes. The language of the section is: "Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the State within which the association is located; but the Legislature of each State may determine and direct the manner and place of taxing all the shares of National banking associations located within the State, subject only to the two restrictions:- that the tax shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State, and that the shares of any National banking association owned by non-residents of any State shall be taxed in the city or town where the bank is located, and not elsewhere." It is contended that no tax is thereby authorized upon the National bank itself as a corporation, nor upon the personal property of any such, and that therefore these shares in the National Bank of Redemption are exempt from taxation by virtue of their ownership. This however is not a reasonable interpretation of the language of the section. The manifest intention of the law is to permit the State in which a National bank is located to tax, subject to the limitations prescribed, all the shares of its capital stock without regard to their ownership. The proper inference is that the law permits, in the particular instance, the taxation of Whitbeck v. Mercantile National Bank of Cleveland. the National banks owning shares of the capital stock of another National bauk, by reason of that ownership, on the same footing with all other shares. Other questions have been raised by counsel for the defense. The right of the plaintiff to sue is denied on the ground that the right of action belongs to the owners of the shares taxed; the right of recovery is denied on the ground that the payment by the plaintiff was voluntary, and the right of action, if it exists, it is alleged, is against the collecting officer, and not the city of Boston. These questions we have not considered it necessary to examine or decide, preferring to rest our judgment upon the validity of the tax. The judgment of the Circuit Court is accordingly affirmed, BRADLEY, GRAY and BLATCHFORD, JJ., did not sit or take any part in the decision. WHITBECK V. MERCANTILE NATIONAL BANK OF CLEVELAND. Taxation (127 U. S. 193.) discrimination -deduction of indebtedness. An order made by the Ohio State board for the equalization of returns of bank shares from the various counties for purposes of taxation, increasing the assessment of shares of a National bank above that of other property in the county, is invalid within U. S. R. S., § 5219, providing against discrimination against such banks in State taxation. Under U. S. R. S., § 5219, where the laws of a State allow a tax payer owning moneyed capital to make a deduction from the amount assessed against him of his bona fide indebtedness, no such provision being made for the indebtedness of holders of bank stock, they are entitled to such deduction, although they omitted to make demand therefor till after the return of the shares for assessment and the session of the State board of equalization. A PPEAL from the Circuit Court of the United States for the Northern District of Ohio. Bill in equity by the Mercantile National Bank of Cleveland, Ohio, against Horatio N. Whitbeck, as treasurer of Cuyahoga |