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because in the ruts of context it may have to obey certain arbitrary laws, it shall, to compensate its involuntary serfdom there, enjoy elsewhere a reign of absolute dominion over confections. They cut a compound word in twain, and dropping the half that indicates its meaning, take the half that belongs to fifty other words and declare it cannot by possibility have any reference to those other fifty better halves, but is descriptive of something not meant at all. There stand the words “Rye and Rock. What mortal mind can say that the rye may not mean rye alone, or rye flour, rye grits, rye bread, rye cakes, or rye biscuit; or that the rock does not mean simply rock, or refer to rocktar, rock-milk, rock-water, or rock-oil?"

"Rock' may be so employed as to refer to a ship or a cradle, to a child or a cargo. It may mean rocking windows or stoning disciples, rocking the household's hope to sleep, or pelting the poor little prattler's paternal ancestor to death.

“It may be made equally as graphically to describe mountains or atoms, birds or beasts, fowls, fishes or flowers — that is to say, if the lexicographers have not been heretofore mistaken. I admit, if they have, the decision I ask you to reverse must be affirmed, but if they have made no misuse of this word 'rock,' then the restriction that has been put by the court below upon the range of its siguificance cannot be sustained."

Then comes a trenchant comparison of the virtue of the rival concoctions:

“Life insurance companies should add to their already prolix catalogue of printed questions : Whose Rye and Rock do you drink?' All rivals will have their followers. No undertaker or gravedigger can consult his interest and depreciate Prescott's 'Rye and Rock.' No life insurance officer can fail to feel a lively interest in the popularity of Van Beil's 'Ryo and Rock.' In tho name of longevity, in the vame of women and children thus exposed to, if not threatened with widowhood and orphanage; in the name of every illustrious publicist, jurist or physicist whose learning, genius, patriotism and ambition are useful to mankind, and who while in the fruition of perfect health are liable to be suddenly cut down, summoned hence, gathered to their fathers, by simply mistaking one bottle of 'Ryo and Rock'for another, I enter my solemn and earnest protest against the longer fluttering of Prescott's false flags upon commercial high seas. The mischief that has already been done is beyond redress. Its extent never can be known. 'Dead men tell no tales.' Tombstones simply relate their own stories in their own way and then defy cross-examination. Those deluded victims whom Prescott 'rocked' to sleep will wake no more till Gabriel's golden trumpet summons them to tell on Prescott's final trial, about the deep damnation of their taking off.'

“Van Beil's 'Rye and Rock' restores health. Prescott's deals death. The one inspires, the other blasts hope. Do you want to live? Patronize Van Beil. Are you tired of life? Cultivate Prescott. If you would stimulate your tenacity to life and enjoy the luxuries

have not uttered one word herein to avenge the dead; that my sole object has been to protect the living, aniong whom I have many kindred, more friends, and one client, who is directly interested, to wit, the plaintiff. The court below seemed to confuse the words · Rye and Rock' with the reputation Van Beil had made for it. If this court avoids that mistake, it occurs to me that its judgment must be a reversal of the judgment entered herein below.”

Now will our readers credit us when we say, that in spite of this argument, the Court of Appeals affirmed the judgment? This result shakes our faith in the elective judicial system. Wo do not like to suspect our courts, but this looks as if Prescott had been dispensing his compound not at the bar alone, but also upon the bench. Such things are not unprecedented, for in the brandy-bottle trade-mark case of Hennessy v. Wheeler, a brandy bottle, if not a bottle of brandy, was publicly handed up to the bench – - 80 we are informed — and was passed about, professedly for inspection. After such a public exhibition, how can we be sure that “Rye and Rock” may not have had a deleterious secret influence with the court-rocked their senses asleep or twisted their judgments awry?

No name of counsel is signed to or appears upon this unprecedented brief. We wish we knew the author's name. We would sound it forth so loud that heaven and earth might hear. He is a man after our own heart. But if he sees these lines, let us whisper in his ear a word of gratuitous advice founded ou personal experience our highest court are sadly impervious to a joke.



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CASTRO, Plaintiff in Error, v. THE QUEEN. Where a defendant is convicted of separate misdemeanors

charged in separate counts in the same indictment, the court has power to pass separate sentences exceeding in the aggregate the maximum punishment for one

offense. By 2 Geo. II, ch. 25, $ 2, and the Penal Servitude Acts, a per

son convicted of perjury may be sentenced to penal servitude " over and besides such punishment as shall be adjudged to be inflicted on such person agreeable to the laws now in being." Held, that a sentence of penal servitude may be inflicted for perjury without any other

punishment. Plaintiff in error was charged in the first count of the in

dictment with perjury in a trial at Westminster, and in
the second count with perjury before a commissioner in
London, the same false statement being charged in both
counts. He was tried in the Court of Queen's Bench at
bar, convicted on both counts, and sentenced on the
first count to seven years' penal servitude, and on the
second count to a further term of seven years' penal
servitude, to commence immediately on the expiration
of the first term. A writ of error having been brought,
held, by tho Court of Appeal, that the sentences were
warranted by law.
(RIT of error on the judgment of the Court of

Queen's Bench, dated the 28th February, 1874, after a trial at bar, sentencing the plaintiff in error to two consecutive terms of sevev years' penal servitude each. The indictment was for perjury, and contained two counts. The first count charged that the plaintiff in error had committed perjury by falsely swearing that he was Roger Tichborne in an action of eject. ment (Tichborne v. Lushington and others) tried before Bovill, C. J., and a special jury in the Court of Common Pleas at Westminster. The second count charged that the plaintiff in error had committed perjury, also by swearing that he was Roger Tichborne, in an affidavit sworn before a commissioner appointed to administer oaths in chancery in the city of London.


If you want to perpetrate the crime but escape the ignominy of suicide, vote early and often at Prescott's precinct. If we were living in a 'pent up Utica'had too little land and too many people, then politic possibly it might become to pet Prescott- to pat his presumption on the back. He could atone for his incapacity to increase the acres by exercising his undoubted capacity to decrease the population. But even then, could it amount to less than a deliberate outrage to put in his pocket profits resulting from plaintiff's patronage of the press ?”'

Then the peroration:

“I beg to assure the court that Prescotts do not have on their death-roll either kith or kin of mine; that I

There were other assignments of perjury in the in- thew, 226; Rex v. Johnson, 3 M. & S. 539; Rex v. dictment, but they are not material to the present Powell, 2 B. & Ad. 75. report.

The plaintiff in error was tried at bar in the Court JAMES, L. J. I am of opinion that this writ of error of Queen's Bench before Cockburn, C. J., and Mellor

was improvidently issued. The question seems to me and Lush, JJ., and a special jury. On 28th Feb. 1874,

(subject to the one point as to the American decision, the jury found him guilty on both counts, whereupon People v. Liscomb, ubi sup., with which I will deal sentence was passed by Mellor, J., as follows: “The presently) to be settled by a current of authorities, sentence of the court is that for the perjury alleged in

and a course of practice which are not open to questhe first count of this indictment, upon which you

tion; and I think that the rule is not subject to the have been convicted, you be kept in penal servitude for

supposed limitation or condition which has been conseven years; and that for the perjury alleged in the

tended for. The law of this country is and always has second count, of which you have also been convicted,

been that several misdemeanors may be joined in seyyou be kept in penal servitude for the further term of

eral counts in one indictment, but each charge is, in seven years, to commence immediately upon the ex

point of law, a distinct indictment, on which the depiration of the term of penal servitude assigned to you

fendant may be convicted or acquitted. It is true that in respect of your conviction upon the first count of a practice has prevailed in cases of felouy, where the the indictment.” Judgment was entered on the record judges thought it not right in capital cases (when in the following terms: “The jurors, on their oaths,

almost every felony was capital) that charges should be say that the said Castro, etc., is guilty of the premises joined of quashing the indictment, or putting the above charged in and by both the said counts. Where

prosecutor to his election upon which charge he would upon all and singular the premises being seen and

proceed, for they thought it desirable that a man understood by the court, it is considered, adjudged,

should not be tried for more than one felony at one and ordered that he, the said Castro, alias Orton, etc.,

time. But no such practice has ever prevailed as to for the offense charged in and by the first count of the

trials for misdemeanors, though in a proper case, if the indictment, be kept in penal servitude for the term of judge saw that substantial injustice would be done by seven years now next ensuing; and that for and in compelling the prisoner to meet different charges at respect of the offense charged in and by the second

the same time, he would have power to put the prosecount of the indictment, he be kept in penal servitude

cutor to his election upon which count he would profor the further term of seven years, to commence im

ceed; but that is a mere exercise of discretion, and the mediately upon the expiration of the said term of question how much discretion ought to be exercised penal servitude for his offense in the first count is not one for a court of error. To my mind there is charged; and he is now committed into the custody of no reasonable distinction between trial and conviction the keeper of the jail of Newgate, to be by him kept

on several charges contained in different counts in one in safe custody iu execution of this judgment.”

iudictment, and several separate trials for the same The following grounds of error were assigned: (1)

charges charged in different indictments. In Rex v. That the alleged perjuries coustituted one offense only;

Wilkes, 4 Burr. at p. 2577, it was distinctly held by the (2) That the second count did not disclose a separate

House of Lords (who were advised by all the judges), perjury from that disclosed in the first count; (3) That

as an unqualified proposition, that for several misdethe offense in general being the same could not be

meauors separato sentences could be passed, one to treated as several offenses in the same indictment; (4)

take effect after the expiration of the other. That is That without statutory provision several distinct

the law thero laid down, which from that time to this offenses could not be charged in the same indictment;

has been unquestioned, and it is too late now to at(5) That two distinct and several indictablo offenses

tempt to dispute the propriety of the law so laid down. could not be tried collectively; (6) That without statu

That law is not questioned in the case in the State of tory provision there cannot be two judgments on one

New York (People v. Liscomb, ubi sup.), on the authorindictment; (7) That on one indictment the maximum

ity of which we are told the late attorney-general gave penalty assigned by statute cannot be cumulatively

his fiat for this writ of error. There it was laid down exceeded; (8) That on one indictment without statu

that the law does not permit several sentences exceedtory provision a sentence of penal servitude or im- ing in the aggregate the amount of punishment preprisonment cannot be made to begin and to run from

scribed by law as the extreme limit of punishment for a future day ; (9) That penal servitude as a punishment

a single misdemeanor, to be inflicted in the case of a for perjury is additional only.

conviction for several misdemeanors charged in differ

ent counts in the same indictment. It is conceded Benjamin, Q. C., and Atherly Jones (Hedderwick and that the law is not so laid down in any English book. Russell Spratt with them), for the plaintiff in error, Then, must we follow that decision? I always have cited Reg. v. Lundgrun, Court Cr. Ct. Sess. Papers, felt great respect for the courts in America, and for vol. 79, pp. 336, 353, 359; People ex rel. Tweed v. Lis- their decisions, but with reference to this question I comb, 60 N. Y. 559,

confess I am startled at the way in which the judges The Attorney-General, Sir Henry James, Q. C. (with

dealt with it. They say that no case in their own

courts has laid down that cumulative sentences can be him the Solicitor-General, Sir F. Herschell, Q. C., Poland and A. L. Smith), for the Crown, cited Rex v.

imposed on a conviction for several offenses under one Wilkes, 4 Burr. 2527.

indictment, and that this view is in accordance with

the English common law of 1775. They say that they In addition to the authorities mentioned above the cannot accept any later decision of an English court following were referred to and commented on in the which is inconsistent with their own practice. That is course of the argument: O'Connell v. The Queen, 11 the ground of their decision, and this present case was Cl. & F. 155; Rex v. Rhenwick Williams, 1 Leach's C. C. cited to them, and they disregarded it. I think that 529; Rex v. Robinson, 1 Moody's C. C. 413; Gregory v. judgment is not binding on us; it is true it was a deThe Queen, 15 Q. B. 974; Rex v. Cutbush, 10 Cox's C. C. cision of a court of appeal, but we cannot measure the 489; L. Rep., 2 Q. B. 379; Campbell and Haynes v. The judgment with reference to that fact or to the number Queen, 1 Cox's C. C. 269; Rex v. Heywood, L. & C. 451; of judges who took part in the decision. We must Ryalls v. The Queeni, 11 Q. B. 781; Rex v. Burch, 4 F. look upon their judgments merely as the opinions of & F. 407; Rex v. Galloway, 1 Moody's C. C. 234; Rex eminent and learned men. Then, what is the principle v. Benfield, 2 Burr. 980; Rex v. Jones, 2 Campb. 130; upon which that decision rests? I have asked in vain Rex v. Clendon, 2 Strange, 870; Rex v. Roberts, Car- and am unable to discover any. The result of what

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was suggested to us in argument is startling if not a wrong sentence and one not warranted by law; but shocking; and I cannot assent to it, for it comes to here the plaintiff in error cannot say that any wrong this, that if a man commits an offeuse of so grave a has been done to him, for his complaint is that he did character that the utmost punishment allowed by law not receive enough punishment, and therefore, as far would be too light, he is to be free to commit any num- as this objection goes, I doubt if error would lie. In ber of similar offenses with impunity, if he is tried any case, however, it seems to me that, on the true before the expiration of his sentence; or if the trial construction of the act (2 Geo. II, ch. 25, $ 2), it is not is postponed until after the expiration of the sentence, necessary that there should be a sentence of fine or he bas all the chances of escape which the difficulty of imprisonment; the words are "judgment shall be proving the case after the lapse of many years would given that the person convicted shall be committed or give him. I think this disposes of the main points. transported accordingly, over and besides such punishAnother point is that the sentence is bad, because it ment as shall be adjudged to be inflicted on such perdid not begin with an additional common-law sen- son agreeable to the laws now in being;” I think that tence of fine or imprisonment. The words of the the court may or may not adjudge fine or imprisonstatute (2 Geo. II, ch. 25, $ 2) are “judgment shall be ment under this section. Then comes the objection given that the person convicted shall be committed or on which the writ of error was allowed. It is contransported accordingly, over and besides such punish- tended that there oannot be a cumulative sentence on ment as shall be adjudged to be inflicted on such per- two counts in the same indictment to a term of panishson agreeable to the laws now in being;" but I do not ment exceeding the maximum allowed for one offense. think this means that such last-mentioned punishment The objection is this, that a defendant may bavo necessarily must be adjudged. Moreover no injustice different punishment on two separate counts, the one has been inflicted on the prisoner and no harm has term of punishment commencing on the expiration of been done, so that it would be our duty to amend the the other, provided the two together do not exceed the sentence, if it required amendment, which I think it maximum term which could be imposed for a single does not. Then it is said that in truth and in substance offense. At common law there was no limit to the there was only one perjury; it is suggested that it was duration of sentences of imprisonment, the only conall one fraud, and one imposture on the part of the dition being that imposed by Magna Charta and the prisoner in passing himself off as another man, Roger Bill of Rights, that they must not be excessive, so Tichborne, in order to get the estates, and therefore that in the case of a common-law sentence the diffithat if there were any number of suits, and any pum- culty does not arise. Then it is said that the statute ber of oaths, there would only be one perjury. It is has drawn a hard and fast line, and has the effect of only necessary to state that proposition to dispose of limiting the power of sentencing in the way conteuded it. Besides, there is nothing on the face of the record for. As to that proposition, except the American caso to show that the perjury was all committed in further- of People v. Liscomb (ubi sup.), which runs counter to ance of one scheme. It is obvious that there were two all the English authorities, no case has been cited; distinct suits — the chancery suit and the common-law there is no other authority favorable to the contention. action of ejectment, and the evidence in the two was Suppose a man commits two offenses, each deserving given at different times and in different places. It is seven years' penal servitude, is the Crown to wait therefore idle to suggest that this was only one and the seven years before prosecuting him for the second same perjury. I am therefore of opinion that the sen- offense ? — the notion is preposterous; or are there to tence was warranted by law, and that our judgment be two separate indictments? if so, what is to happen ought to be for the Crown.

then? is judgment to be respited on the second charge

until the defendant has served the sentence awarded BRAMWELL, L. J. I have had some doubt whether I on the first? Is not the more reasonable and convenought to occupy any further time in delivering judg

ient course to join the two offenses in different counts, ment in this case. I am certain that the writ of error and pass sentence for both? I can see no justification was not allowed without due care by the late attorney- for the contention that this cannot be done. I am ol general, and I think it was warranted by the decision

opinion that it is not so in law, it is not so in reason, in the American court, but now that the whole ques- and the authorities are against it. I agree, therefore, tion has been discussed, this appears to me to be as that the sentence must be affirmed. plain a case as ever came before any court. The first point which has been raised comes to this, that if a BRETT, L. J. I have listened attentively to Mr. man brings several suits, and gives false evidence in Benjamin's argument, because I knew that every point all of them, though he may tell an infinity of untruths, which could be raised would be put before us, but it still, if his object throughout is to establish a claim to has produced no real effect upon my mind. Two main the same property, it is only one perjury, and can only objections have been taken, one of which, if correct, be punished as a single offense. This is, to my mind, would bo fatal to the sentence (unless amended), eren an outrageous proposition; it would be monstrous if if only one term of penal servitude had been awarded, he could not be punished again when he repeats the while the other only goes to this, that the second term false statement. Then it is said, that as the statutes is not warranted by law. These two objections are provide that he may be sentenced to seven years' penal now brought forward six years after tho passing of the servitude for the offense of perjury, he cannot have sentence. As to the first point, it is said that the sezmore than that amount of punishment for many per- tenco is wrong, because it was not preceded by a juries; it comes to this, that he gets a status as a per- nominal sentence of fine or imprisonment. This is jurer, and having been punished once cannot be pun- really of no consequence, because the sentence could ished again; the same argument might be used as to be amended if it were necessary, but it is important to every offense – for instance, coining. The next point give an opinion on the question, for it turns on the is this: the plaintiff in error was sentenced to seven construction of 2 Geo. II, ch. 25, $ 2; I am of opinion years' penal servitude on one count of the indictment that that is an enabling section, and empowers the (putting aside for a moment the question as to the two court to add to the common-law punishment a sencounts), and it is contended that he ought to havo had tence of transportation (now penal servitude), or to a sentence of fine or imprisonment in addition; I give such sentence in substitution for the common-law doubt if he could make that objection. No doubt punishment. I think the words of the statute gire a where the sentence should be hanging, and a man was strong indication of the view that the court may adsentenced to transportation, he could maintain a writ judge the common-law punishment in addition to of error, because there the sentence imposed would be penal servitude, or muy not do so, as seems right. It

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is said that on other trials which have been referred to American judges. It is said that by statute thrée I took another view, and gave a short sentence of im. felonies are expressly allowed to be joined in cases of prisonment in addition to a term of peval servitude, embezzlement. But that enactment relates to probut that was only by way of precaution, and is no cedure, not to punishment, and it only took away the authority to the contrary of what we are now deciding. power to quash the indictment for misjoinder, or put It is obvious that the judge has power to add a pre- the prosecutor to his election in cases to which it apvious sentence of imprisonment to a sentence of penal plies. Then there is the American decision, People v. servitude, but this does not show that he has not power Liscomb (ubi sup.). I am always anxious to hear what to omit such previous sentence. According to our has been decided by the courts and judges in America, unanimous construction it is an enabling section. and what views they have taken on any points coming Then there is the main objection. It is argued that before us; but here the proposition seems to be that if there were not two offenses. It is not necessary to one sentence follows another the two together shall consider what the law is with regard to two perjuries not exceed the extreme amount which could have been taking place on one trial. Here there were two abso- awarded for one of the offenses. With deference, and lutely distinct and separate offenses. It is said that with candor, I confess that I can see no reason in form because they are charged in the same indictment they or in substance for the conclusion arrived at in that are only one offense; but I think that during the last case; it seems to me to be only a judicial declaration three hundred years the contrary has been the law, that it is so. The question is dealt with by Patteson, and it has often been so ruled, and it seems to me that J., in O'Connell y. The Queen, 11 Cl. & F. at p. 261, and separate counts are equivalent to separate indictments. what he says there shows that it was his opinion that Then it is said that the counts do not end " against tho where the commencement of the second sentence is form of the statute," otc., if the offense is the result posponed till the conclusion of the first, it is no objecof a statute, that must be put in; otherwise it need not. tion that the aggregate exceeds the maximum which Then, can the punishment for the second offense be could be awarded for one offense. This seems to me postponed until after the first punishment is over ? to be an irresistible inference from the language used. This has been decided by the House of Lords in Wilkes' In Rex v. Robinson (ubi sup.), while deciding that a case. A specific question was there put to tho judges sentence of two years' imprisonment was incorrect, the by the House of Lords in these words: “Whether a judges said “that there should have been consecutive judgment of imprisonment against a defendant, to judgments of one year's imprisonment each." It is commence from and after the determination of an im- true that it is not a decision, but it shows very clearly prisonment to which he was before sentenced for an- what the opinion of the judges on this point was, and other offense, is good in law?" There was no reference what Blackburn, J., said in Rex v. Cutbush (ubi sup.) is there to one of several indictments, and tho question also a strong authority to the same effect. I am therewas answered in terms by the judges: “That a judg- fore of opinion that this is a perfectly clear case, and ment of imprisonment against a defendant, to com- that the sentenoe imposed was warranted by law. mence from and after the determination of an imprison

Judgment affirmed ment to which he was before sentenced for another offense, is good in law." 4 Burr, at p. 2579; 19 Howell's

TAXATION OF SHARES-REMEDY FOR ILLEState Trials, 1127-1136. That question and answer are

GAL - CONSTITUTIONAL LAW. entirely irrespective of whether the offenses were included in one indictment or two, and the law has been so interpreted ever since. The question of the House

CIRCUIT COURT, N. D. OF NEW YORK, NOV., 1880. of Lords in that case was whether the court could postpone the commencement of the second sentence

NATIONAL EXCHANGE BANK V. HILLS. until the expiration of the first. The judges gave one

A State statute, independent of and designed as a substilimitation, “that the punishment shall take place

tute for all other provisions for taxation, which permits before a total dismission of the party; a punishment any debtor, assessed upon personal property, to deduct shall rot hang over a man's head when he has once the amount of his debts from the valuation of all his perbeen discharged.” 19 Howell's State Trials, 1133. They sonal property, including money capital, except bank seemed to consider it not right to postpone the com

shares, is wholly unconstitutional and invalid as to Namencement of the second term of punishment to a

tional bank shares, and affords no authority for making

any assessment upon such shares; and an injunction to period later than the prisoner's dismission from the

restrain the enforcement of such tax will issue at the suit first. But then they continue, “But whilst he remains

of a bank the shares of whose capital are thus illegally under a state of punishment, whilst he is suffering one assessed against the shareholders. part of his punishment, he is very properly the object

YUIT to restrain the collection of a tax against the coutinuance of the former, or immediately after shareholders. The opinion states the case. the end of it.” Id.; Rex v. Williams, Gregory v. The

Matthew Hale, for complainant. Queen, and Rex v. Robinson (ubi sup.) are all to the same effect. Mr. Benjamin cited 7 and 8 Geo. IV, ch. 28,

R. W. Peckham, for defendant. $ 10, and said that because that provision was required WALLACE, J. The complainant has filed its bill in for cases of felony, something of the kind is also re- equity to enjoin the collection of a tax assessed in 1879 quired for cases of misdemeanor. That section was against its shareholders by the board of assessors of passed after the answer of the judges in Wilkes' case the city of Albany, the defendants being the officers had been given, as Blackburn, J., says in Rex v. Cut- of the city charged with the collection of taxes. bush, L. R., 2 Q. B. at p. 381, “ to give the courts the The bill proceeds upon the theory, first, that the assame power in cases of felony as they had at common sessment against the shareholders is void, because there law in misdemeanors." Therefore this argument is was no legal authority for making any assessment; turned against Mr. Benjamin by this opinion of Black- second, if not void, for want of original authority, it burn, J. Mr. Benjamin says that this rule applies only was based upon a rule of unequal valuation of differwhere the defendant is in prison; but he is really in ent classes of property, intentionally adopted by the prison when the sentence is passed; the sentence assessors in order to discriminate unjustly against always begins from a date prior to the time at which it shareholders of National banks, and was excessive, is passed. What Blackburn, J., says shows that the and as to the excess the collection of the tax should be law is the same as to felony and misdemeanor, and that restrained. is a strong authority against the view adopted by the Both of these theories are grounded on that section

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of the act of Congress relating to National Banking treating it as a part of the general system of taxation, Associations, which restricts taxation of shares in such and reading it as though it contained these provisions associations imposed by the authority of the State found in other parts of the system which would secure within which the association is located, by providing to the holder of bank shares the same exemptions and “that the taxation shall not be at a greater rate than privileges allowed to the holders of other money capi. is assessed upon other money capital in the hands of tal. Accepting this as the true construction of the law, individual citizens of such States."

it was held by the Supreme Court of the United States, The assessment complained of was made under color in People v. Weaver, that the operation of the laws to of an act of the legislature of this State, passed April impose upon a citizen of the State, whose money was 23, 1866, entitled “An act authorizing the taxation of invested in bank shares, a greater rate of taxation than banks and surplus funds of savings banks." This act, was imposed upon those whose capital was otherwise as construed by the highest court of the State, in view invested, in violation of the prohibition of the law of of previous legislation and upon consideration of the Congress. It was only necessary to decide in the parvarious provisions and directions of the act itself, es- ticular case that the person assessed was entitled to the tablished a system of taxation for bank shares “pecu- deduction from his assessment on account of his debts, liar to itself and independent of the general system of which he claimed, and the question was not before the taxation in existence in the State," and upon this court whether or not the whole assessment was void; ground it was decided by the Court of Appeals (Dolan but the opinion proceeds upon the ground, and exv. People, 36 N. Y. 59; Thomp. N. B. Cas. 684), that a pressly declares that the statute of the State is in conbank shareholder, who had been assessed upon the flict with the act of Congress, because it does not value of his shares, was not entitled to any deduction permit such deduction on account of debts. on account of his debts, although the general laws of It would seem that these discussions are conclusive the State and the local law relating to assessments in to the effect that the act of 1876 is to be regarded as the city of Albany contained provisions whereby in though it in terms declared not only that the shares in the assessment of personal property a deduction should National banking associations should be taxed at a be made for the debts owing by tho person assessed. rate, and upon an assessment prohibited by the act of

So far as this act contravenes the law of Congress by Congress, but also as though it declared that no other imposing a tax upon shares of National Banking Asso- tax should be imposed on account of such shares, beciations, at a greater rate than is assessed upon other cause being a substitute for the existing provisions of moneyed capital in the hands of individuals, conced- the general laws as respects the taxation of capital edly it cannot stand, but the point i controversy is represented by bauk shares, it is by implication a rewhether an assessment made under the act is void for peal of those provisions. want of power in the assessors to make any assessment, The decisions of the courts of a State in the conor is only erroneous when made without granting the struction of a State statute, where no Federal quesdeductions allowed by tho general laws of the State. tion is involved, aro conclusivo upon the courts of the If the assessors have no power to make a valid assess- United States, and the construction which was given ment of the shares eo nomine, or against the owners for by tho Court of Appeals to this statute has been recoge the value of their shares, the wholo foundation of the nized as controlling and final by the Supreme Court of taxation fails. On the other hand, if the assessors the United States. have authority to assess under the statuto in question But it is urged on behalf of tho defendants that the or under the other statutes of the State, then tho in- Court of Appeals may reconsider its views in the light quiry arises, whether the assessment is erroneous, be- of the decision of the Supreme Court, and tho consecause the proper deductions were denied, or because a quences which ensue from that decision. Undoubtedly rule of valuation which discriminated unfairly against these consequences may be serious, as shareholders of the stockholders was adopted; and this being so, National banks may in some instances escape the pay. whether there is any remedy except in a direct pro- ment of taxes upon their personal property to the exceeding to review the assessment. Obviously if the tent such property is invested in bank shares. This first theory of the complainant is sound, it is of no im- consideration, as well as thoso graver ones which lead portance whether the shareholders of the complainant courts to seek for some construction of a law, which were, in fact, owing debts which should have been de- will uphold it if possible, would appeal with great ducted from tho assessment or not, because there was force to any tribunal before which the question origino jurisdiction for any action on the part of the nally presented might come. But this court must take

the law as it finds it, and must accept tho decision of In the view of the case which I am constrained to the Court of Appeals as authoritativo. This court can. adopt, it will not be necessary to examine the second not substitute in the place of that decision its own theory which has been alluded to, a theory which, upon judgment as to what the Court of Appeals might pos. the facts, involves several difficult and doubtful ques- sibly decide upon a reconsideration of the questions tions of law; but I am of the opinion that the only involved. authority for the assessment is to bo found in the stat- Besides the decision of tho Court of Appeals, referute of 1866, and that act, as respects the taxation of ence should be made to the act of tho Legislature of June shares in National banking associations, is radically 26, 1880, as a legislativo exposition of the act of 1866, vicious and can have no operation. This conclusion is The later act is clearly intended as a substitute for the predicated upon the decision in Dolan v. People, and act of 1866, and does not vary essentially in its prori. upon People v. Weaver, 100 U. S. 539.

sions from the earlier act except that it expressly deThe construction given to the act in Dolan v. The clares that in the assessment of bank shares each stockPeople is explicitly to the effect that the act is in- holder shall be allowed all the deductions and exemptended to establish a system of taxation for bank tions allowed by law, in assessing the value of other capital peculiar to itself, and independent of the gene- taxable personal property owned by individual citizens ral system of taxation in existence in the State. It is of the State, and the assessment and taxation shall not there declared that “the act was intended as a substi- bo at a greater rate than is made or assessed upon tute for the then existing mode of assessing and taxing other moneyed capital in the hands of individual citithat portion of the property of the State invested in zens of this State. This act was wholly unnecessary, the capital of these moneyed corporations.” If this if, as is contended for the defendants, the original act is the correct exposition of the statutory intent, it should be construed as though the provisions of the cannot be questioned that the act must stand or fall general laws relating to reductions were incorporated upon its own provisions, and cannot be sustained by in it.


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