Mitchell v. St. Maxent’s Lessee, 71 U.S. (4 Wall.) 237
Case details
Bluebook Citation
Mitchell v. St. Maxent’s Lessee, 71 U.S. (4 Wall.) 237
Full caption
Mitchell v. St. Maxent’s Lessee.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Davis (Justice)
Majority
Nelson (Justice)
Majority
Field (Justice)
Mitchell v. St. Maxent’s Lessee.
A writ offieri facias, tested and issued after the death of the party against w om the judgment is recovered, is void, and confers no power on the ministerial officer to execute it.
W*lde.n®- B<>dley, 14 Peters, 156; 1 Greenleaf’s Ev., 33 529 and 530, Md authorities there cited.
2. The rule applies where the proceedings are commenced by seizing prop« erty under a writ of attachment, under the laws of Florida, as at the common law.
Error to the District Court of the Northern District of Florida. The case was thus:
On a proceeding on foreign attachment, judgment had been obtained in Florida, November 12th, 1825, against St. Maxent, a non-resident, but who owned certain lands in Escambia County there. St. Maxent died on the 25th day of November, 1825. On the 26th day of November a fieri facias was issued. The sheriff returned it December 1st, 1825, “levied on the land” in question. Then followed a venditioni exponas, but all proceedings were stayed by injunction. Then, on the 21st of December, 1826, a writ of fieri facias against the said St. Maxent was issued, directed to the marshal of the district, and under this the land was sold and conveyed to J. K. Mitchell, or to persons from whom he derived title. The heir of St. Maxent having brought ejectment against Mitchell, the court, on the above state of facts, gave judgment for the heir.
In this court several questions were raised, among them, whether the sale to Mitchell, under the circumstances above stated, was valid.
Mr. Reverdy Johnson, for Mitchell, plaintiff in error:
At common law, if the execution be tested in the lifetime, it may be taken out and executed after death, for the execution related to the judgment, and might be tested immediately after it was rendered.
The doctrine of relation is carried still further; for if defendant die in vacation, judgment might still be entere after his death, and execution issued as of the preceding term.
This rule was limited by the statute of 29 Car. II, to t e parties themselves, and bond fide purchasers were protecte from its operation. ,
In the eye of the law, therefore, it is the judgment w ic conclusively settles the rights of the parties on the day o 1 p. 239rendition, and a fiction is resorted to, to prevent a subsequent disability from interfering with its enforcement.
To the like effect is the act of 27th June, 1823, of the Legislative Council, Territory of Florida:* “ The service of attachment on lands, &c., shall bind the property attached, and a judgment obtained therein shall have relation to the time of the service of attachment, and the plaintiff* shall have priority of payment out of the property attached, except as to valid subsisting liens,” &c.
In this case the plaintiff* in attachment had a right to an execution, tested the day after the judgment, and it is clear that if it had been so tested, the death could n it have vitiated it.
The parties, therefore, have nothing to complain of, and if this irregularity could be taken advantage of at all, as against a bond fide purchaser at a judicial sale, it must be by a direct proceeding, and not collaterally.
Voorhees v. Jackson,f is in many respects parallel to this. The plaintiff in ejectment relied upon his purchase under an attachment suit, which was resisted on the ground that none of the prerequisites required by statute to vest the jurisdiction had been complied with, and defendant had never appeared. The court held, that while the judgment remained in force it was itself evidence of the right to the thing adjudged, and that errors, however apparent, can only be examined by the appellate power. That it would be a well-merited reproach to jurisprudence if an innocent purchaser, who had paid his money on the faith of an order of the court, should not have the same protection under an erroneous proceeding as the party who derived the benefit accruing from it. The purchaser under judicial proceedings pays ep.aintiff his demand on the property sold; to the extent t is, he discharges the defendant from his adjudged obli-
gation. J 6
that ^C^s’ ^r- McPherson, of opposite counsel, remarked Florida818^4^^° ^een rePea^e^ ! referring to acts of the Teiritory of t 10 Peters, 449.
The land lying in Florida was under its sovereignty and jurisdiction, without regard to the citizenship of the owner, and the jurisdiction of its courts was ample.
The proceeding was by attachment, and by its levy the plaintiff acquired a right in the specific property consummated by the judgment. It thus became sequestered in the hands of the law, and was held for his benefit as fully as if it had been levied on by a Ji. fa. The levy of a writ, or a levy of a Ji. fa., stand under the same sanctions. Both are solemn judicial orders, executed by the officer of the law, under his official responsibilities; and if this betrue, the case of Doe v. Taylor* is conclusive of the question. On the objection to the title in ejectment, that the venditioni exponas under which the land was sold was tested subsequent to the death, the court held, that as the judgment operated as a lien on the land, and a prior execution attached “specifically upon the subject of its operation,” that “the rights of the parties to the subject-matter were determined, and all controversy closed. The law had taken the subject entirely to itself, to be applied by its own authority and its own rules.”
Here the party has his levy and a judgment, which the court in this case regarded as conclusive, and closing all controversy. He may have issued a mere “ venditioni; all he wanted was an order of sale. That he sued out a/. ff> instead of this, cannot vary the rights of the parties, which were fixed by the levy and judgment.!
An attachment is a proceeding in rem. Notice is serve upon the thing itself. This is necessarily constructive notice to all who have any interest, or can assert any tit e. Every such person is considered as a party to the procee ing, and the suit does not abate by death. As soon as sue process is commenced, and the arrest of the property is made, it is in the custody of the law. For it is a genera rule in proceeding in rem, that the custody of the thing IP
Argument against the plaintiff in error.
controversy belongs to the court in which the suit is pending.*
The judgment of a competent court, proceeding in rem, is conclusive with respect to the thing itself, and operates as an absolute change of property; and no court of co-ordinate jurisdiction can examine into it. If an erroneous judgment binds the property on which it acts, it will not bind the less because its error is apparent. Of this error advantage can only be taken in a court capable of correcting it.f
In *Thompson v. Tolmie,\* the language of the court was, “When there is a fair sale, and the decree executed by a conveyance, the purchaser will not be bound to look beyond the decree, if the facts necessary to give jurisdiction appear upon the record.”
Upon these settled principles, this court held, in the case of Whiting v. Bank of the United States,§ that the death of the mortgagor, after the decree of foreclosure and sale, but before the sale was made, constituted no ground for a bill of review.
The case now before the court appeals more strongly to its sense of justice. There, the application was to a court of equity, which, in affording relief, always compels the party to do equity. Here, there is an action at common law, where, if the party succeed, he recovers the land while retaining the purchase-money for which it was sold.
Messrs. Carlisle and McPherson, contra:
That no individual or public officer can sell and convey a good title to the land of another, unless authorized to do so. y express law, is one of those self-evident propositions,” sai Marshall, C. J., in *Thatcher v. Powell,\\* “to which the assents without hesitation, and that the person invested W1 such a power must pursue with precision the course prescribed by law or his act is invalid, is a principle which _^2^_rePeatedly recognized in this court.” St. Maxent, p. 242the defendant in the attachment, having died on the 25th of November, the writ of fieri facias, issued and tested on the 21st of December following, without any scire facias against his heirs or terre tenants, was necessarily void.* This being a principle of the common law, was introduced into Florida by the act of the Legislative Council, passed June 29, 1823,
*
Burke V. Trewit, 1 Mason, 100. t 2 P ^ams Amroyd> 7 Crunch, 423; Elliot v. Pearsal, 1 Peters, 340. ’ * ***>« J18M.1S. || 6 Wheaton, ¡25. V»L. i,. M
Mr. Justice DAVIS delivered the opinion of the court.
The solution of one question presented by the record is decisive of this case. Does the writ of fieri facias, tested and issued after the death of the party against whom the judgment is rendered, confer power on the ministerial officer to execute it? That St. Maxent was the owner of the lands in controversy at the time of his death, and the plaintiffs below are his heirs-at-law, is admitted; but it is claimed that the title was divested by certain proceedings in attachment against him in the courts of Florida, which ripened into a judgment while he was alive. It is a well-settled principle of law, which has often received the sanction of this court, that the decree or judgment of a court, having jurisdiction, is binding until reversed, and cannot be collaterally attacked. But the defect in this case occurs after the judgment, and is fatal to Mitchell’s title, for purchasers at a judicial sale are not protected, if the execution on which the sale was made was void. Void process confers no right on the officer to sell, and all acts done under it are absolute nullities.
The writ offieri facias on which Mitchell rests his title, was tested after the death of St. Maxent; and, according to a familiar rule of the common law, it was therefore void. The death of a defendant, before the test of an execution, compels the plaintiff to sue out a writ of scire facias, for the alteration of the person altereth the process. J The heirs, devisees, and terre-tenants of the deceased must have p. 243notice before an execution can regularly issue, for they are the parties in interest, and should have an opportunity to interpose a defence, if any they have, to the enforcement of the judgment. Erwin's Lessee v. Dundas* is an authority in point, and it is unnecessary to refer to any other.
*
Erwin’s Lessee v. Dundas, 4 Howard, 58; Woodcock v. Benne.t, Oowan, 738. . „ + Acts, &c., p. 136. J Bacon’s Abridgment, Title « Scire Facias.
But it is contended that the doctrines of that case have been overturned by the decision of Taylor v. Doe, reported in 13th Howard. This is an erroneous view of that decision. The court held, in that case, that it is not necessary to revive a judgment by scire facias, where an execution regularly issued during the life of the defendant had been levied on land, but that the officer who had made the levy could proceed to sell, under a venditioni exponas. That writ was regarded as a completion of the previous execution, by which the property had been appropriated, and not as an original or independent proceeding.
It was in the power of the legislature of Florida to have changed the rule on the subject of the test of process; but, having failed to do it, and having adopted the common law of England, the question in issue must be decided by the rules of the common law.f
But it is insisted that the rules of the common law only attach to suits prosecuted in the ordinary way, and do not
apply where the proceedings are commenced by seizing property under a writ of attachment. This is a novel view, or the law of attachment, being in derogation of the common law, courts are not inclined to extend its provisions eyond the requirements of the statute authorizing it. In
Florida the service of the writ of attachment binds the' property, and retains it in custody of the law, for the benefit e attaching creditor, if he obtains a judgment and execu ion, and the property is to be disposed of as in other ases o property levied upon and taken in execution.^ thp 8 aU executjon/8 required, and the law is silent about manner of its issue, it follows tha b it is to be tested and
+ ldHi«9Qd’ Laws of I?lor la>1822 to 1825» P- 136-4 •*■<. 1823, n. 40
issued as writs of fieri facias are on judgments obtained through the usual methods of the common law.
The judgment of the court below is
Affirmed with costs.
People v. The Commissioners.
1. Shares in banks, whether State banks or those organized under the act of June 3d, 1864, “to provide a national currency,” &c., are liable to taxation by the State under certain limitations (set forth in section forty-first of the act), without regard to the fact that the capital of ¡such banks is invested in bonds of the United States, declared, by statutes creating them, to be exempted from taxation by or under State authority. Van Allen v. The Assessors,* affirmed.
2. If the rate of taxation by the State on such shares is the same as, or not greater, than upon the moneyed capital of the individual citizen which is subject or liable to taxation; that is to say, if no greater proportion or percentage of tax on the valuation of the shares is levied than upon other moneyed taxable capital in the hands of its citizens, the shares are taxed in conformity with that proviso of the forty-first section, which says that they may be assessed, ‘ ‘ but not at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State.”
These were two cases which arose upon a certiorari, prosecuted, the one by Denning Duer, as relator, the other by Ralph Mead, in the same way, out of the Supreme Court of the State of New York, and directed to the Commissioners of Taxes and Assessments for the City and County of New York, the defendants in error. The relator in the first case was a holder of certain shares of stock in the National Bank of Commerce in New York, a banking association organized under the National Bank Law. The relator in the second case held certain shares in the Corn Exchange Bank, in the city of New York, incorporated under the laws of the State. These shares, in both banks, had been assesse in the year 1866, for the purposes of taxation under t e
* 3 Wallace, 573.
State laws, by the commissioners, as personal property of the relator, in the place in which the banks were located.
In justification of their proceedings the commissioners relied upon:
First. The enactments, in the form of provisos, in the forty-first section of the National Bank Law, passed June 3d, 1864,* in these words:
“ Provided, That nothing in this act shall be construed to prevent all the shares in any of the said associations, held by any person or body corporate, from being included in the valuation of the personal property of such person or corporation in the assessment of taxes imposed, by or under State authority, at the place where such bank is located, and not elsewhere $ but not at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State.
Provided further, That the tax so imposed under the laws of any State upon the shares of any of the associations authorized by this act, shall not exceed the rate imposed upon the shares in any of the banks organized under authority of the State where such association is located.’’
Secondly. An act of the State of New York, passed April 23d, 1866,f in these words:
Section 1. No tax shall hereafter be assessed upon the cap 1 .any bank or banking association organized under the onty of this State or of the United States 5 but the stock° ers in such banks and banking associations shall be assessed
an taxed on the value of their shares of stock therein; said ares s all be included in the valuation of the personal prop-
toJ °f 8UCh 8^ockholder in the assessment of taxes at the place, n, or ward where such bank or banking association is located, nlap U + 6 8ewbere, whether the said stockholder reside in said iesspd °Wn’ waiA or not; but not at a greater rate than is as-Sfate ” ^°n mone^e<^ capHai in the hands of individuals in this
^The^case was heard by the Supreme Court of New York,
* 13 Stat, at Large, 99.
1
Laws of New York, for 1866, vol. 2, p. 1647.
on the return of the commissioners, as upon a demurrer thereto. The return stated that the commissioners did assess the relator upon the value of said shares, and included the same in the valuation of his personal estate.
That they made no allowance or deduction on account of investments by the bank in any securities of the United States.
That such a deduction or allowance was made in assessments upon insurance companies and individuals.
The Supreme Court gave judgment for the commissioners, which judgment the Court of Appeals affirmed.
The cases were now here for review, under the twenty-fifth section of the Judiciary Act; two questions, among others brought up but not considered by this court, being:
1. Whether the New York statute, of 23d April, 1866, was valid so far as it attempts to authorize the taxation of bank shares where the capital of such bank is invested in United States securities, exempt from taxation under the acts of Congress ? a question argued separately in respect to State banks, and to those organized under national laws.
2. Whether the taxation of the shares of the several relators was not invalid, for the reason that an illegal discrimination was made in favor of other State corporations and individuals, citizens of said State?
Besides the two cases reported by name here, there were eight or ten cases in substance very similar to them, the cases being represented by different counsel.
The various relators, plaintiffs in error, were represented by Messrs. W. M. Evarts, B. D. Silliman, J. E. Burrill, and E. S. Van Winkle.
On the other side were, Messrs. C. O’Connor, A. J. Parker, B. O’Gorman, and W. Hutchins.
For the relators, plaintiffs in error:
I. The case of Van Allen v. The Assessors* adjudged, in fact, no more than that, under the legislation of New York,
* 8 Wallace, 573.
as then existing, a tax could not be laid on shares in the national banks. That was the point of the case. Whether such an act as that passed 23d April, 1866, would be valid so far as it taxed bank shares, where the capital of the banks was invested in Federal securities, was not a question necessarily in the case.
[The counsel then proceeded to discuss at large the first question as related to national banks, upon the assumption that this question was still open in this court for discussion.]
n. There is no act of Congress authorizing the taxation of shares of State banks whose capital is invested in United States securities, and the State, in asserting its right to tax such shares, cannot invoke any power or authority from Congress, but must maintain such right as one of State sovereignty. It is evident from the opinions in Van Allen v. The Assessors, that the court, in sustaining the assessment and the State law under which it was made, place its judgment upon the proviso in the forty-first section of the act of Congress.
A question is now presented, whether, in the absence of any act of Congress authorizing the taxation of the shares of State banks, whose capital is invested in government securities, such taxation by the State can be supported.
On this point we submit:
1. The United States securities, in which the capital of the Corn Exchange Bank, which is a State bank, is invested, are included within the provision of the act of Congress, that such securities, “ whether held by individuals, corporations, or associations, shall be exempt from taxation by or under btate authority.”* , js settled, in adjudications of the Supreme Court of
e Qited States, that the capital of such bank cannot be xe upon any measure or computation of it which includes e investment in these United States securities, thus exempt
Mawfrom State taxation.!
3. It is also adjudicated by the Supreme Court of the United States, upon a unanimous judgment of that court that a tax, incompetent to State authority when assessed to the corporation or association as owner, and upon its capital in bulk, is equally incompetent to State authority when assessed to the shareholder as owner, and upon his shares.*
4. The tax complained of by the relators, depending for its validity, as it does, upon the mere vigor of the legislation of the State of New York, and being without aid from any legislation or permission of Congress, is necessarily invalid as respects the investment of the bank, in United States securities, exempt from taxation.
III. In making the assessment, the commissioners dis« criminated against the shareholders of national banks, and in favor of insurance companies and individuals, by refusing to make to the former the same allowance which is made to the latter on account of investments in United States securities, and have thus assessed “ such shareholders at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens,” in violation of the act of Congress above referred to.
The only permissive legislation of Congress touching the subject of State taxation of the shares of national banks is found in the forty-first section of the National Currency Act of June 3d, 1864.
And the only permissive State legislation touching the taxation of shares of State banks is the act of April 23d, 1866, and by each of said acts it is provided that such taxation shall not be “at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State.”
The two provisos of the forty-first section of the act of June 3d, 1864, respectively refer to different subjects.
The first relates to the valuation at which the shares shall be assessed; and provides that it shall not exceed the rate of valuation at which other moneyed capital in the hands o individuals shall be assessed.
*
Van Allen v. The Assessors, 3 Wallace, 673.
The second refers to the rate at which taxes shall be imposed on such valuation, after such assessment has been made, and provides that such taxes shall not exceed in rate, or percentage, that imposed on shares in State banks.
The question in this case is not as to any rate, or percentage, at which taxes have been imposed, but as to the rate or value at which the shares have been assessed.
The assessment of the shares held by the relator in the Bank of Commerce was invalid, because they were assessed at a greater rate than was assessed on the shares in insurance companies, and at a greater rate than was assessed on the capital of insurance companies; and hence were assessed at a greater rate than “ other moneyed capital, in the hands of individual citizens” of New York.
Insurance companies incorporated under the laws of New York are moneyed corporations.* Such companies by the laws of New York are subject to taxation on their capital.f But they were assessed, and could legally be assessed, only
upon the balance or residue of their capital and surplus profits, after deducting therefrom the amount of bonds and other securities of the United States held by them.| Insurance companies in New York are subject to taxation on their capital, and the owners bf stock in such companies
are consequently exempt from taxation thereon. The stock so held by them, therefore, could not, under the laws of ew York, be included in the valuation of their personal
property in the assessment of taxes imposed by or under a e authority. It is no answer, however, to say that the an s are8 pave not been a88e8ge(j for valuation at a greater
^a e t an insurance shares, because the latter are not as-ta8Sf a^’ an^ are not su^ject un(ier the State laws to • Xa?°n‘ . omission to assess and tax insurance shares rJ ~ Principle of the first proviso. Its direct
18 o produce the prohibited discrimination.
_ 18 8U mitted that the reasons above assigned for the re-
t tatUteS °f NeW Y°rk’ 698’ 61- t Id. 414, § 1. Case, 2 Wallace0^106 * Commissioners> 2 Black, 020 5 Bank Tax p. 250versal of the judgment of the State court are sanctioned by the unanimous opinion of this court in Van Allen v. The 2ssessors.
In that case the judgment was reversed, because of a non-compliance with the second proviso of the forty-first section relating to the tax.
In the present case the defect is a parallel non-compliance with the first proviso relating to the assessment.
For the defendants in error: All the questions involved in the discussion of these cases upon the merits have, in effect, been decided by this court against the positions maintained by the plaintiffs in error.
When the question of the right of the State authorities to tax shareholders in national banks was before the court, in Van Allen v. The Assessors, it was held, as will be seen by reference to the case, that the right existed, and that the tax would have been legal, except for a single defect in the enabling act passed by the legislature of New York in 1865, which consisted in an omission to re-enact a provision of the act of Congress which required, that “ the tax so imposed under the laws of any State upon the shares of the associations authorized by this act, shall not exceed the rate imposed upon the shares of any of the banks organized under the authority of the State where such association is located,” and it was then said by the court that that defect “ may be readily remedied by the State legislature.”
That defect was accordingly remedied by the act of t e. legislature of New York, passed April 23d, 1866, by whic both state and national banks were put on the same footing as to taxation.
That it was then intended, in the decision of Van A The Assessors, by this court, to make a final disposition o the question whether the shares of national banks were
liable to municipal taxation, is declared by the court i e in the following language: “ The court are of opinion this power is possessed by the State, and that it is ue several cases which have been so fully and satisfac on J p. 251gued before us at this term, as well as to the public interest involved, that the question should be finally disposed of.” And the court then proceeded to state the grounds and reasons which they said “ had led to their judgment in the case.”
The report shows that every point was fully considered by all the judges, with a view to a decision of all the questions now attempted to be raised again.
It was held in that case:
1. That it is not a tax upon the Federal bonds, but upon the benefits the shareholder would derive from the new use of them under the privilege conferred upon the associations by the act of Congress.
2. That a tax on the shares is not a tax on the capital of the bank.
3. That Congress has the power to permit the States to levy the tax, and has so legislated as to leave the shares of the stockholder subject to State taxation without any deduction for United States bonds held by the association.
4. That “ the State tax under this act of Congress involves no question as to the plighted faith of the government.”
It is true, there was another question, a technical one, involved. But that makes the decision none the less authoritative on the other question. Both the questions were equally presented, discussed, and decided; the constitutional power to tax, and the question whether the tax was properly evied. And it makes no difference that the decision of one, stan ing alone, requires the affirmance of the judgment, an the other called for a reversal, though the judgment was in act reversed. A decision becomes authority, when it appears that the question was really involved and was fully considered and decided by the court.
ut if the question upon the merits is again open for disussion, t en we say: [The counsel then discussed the matter upon merits.]
the cape of Mead and others of the cases now before p. 252this court, the question is raised whether a municipal tax may be collected from the shareholders of State banks, when the capital of the State bank, or a part of it, is invested in government bonds. Why should it not be?
This tax is levied in accordance with the express provision of the State act of April 23,1866.
It is not a tax on the capital of the banks, nor on the United States bonds held by the bank. This view is sustained in Van Allen v. The Assessors.
This taxation is by implication authorized by the act of Congress, which expressly permits shares of stock in national banks, under like circumstances, to be taxed, and then requires that the taxation of shares of both national and state banks shall be placed on the same footing.
And the same reason for it exists as in the case of national banks, because the bonds are in fact put to a use not contemplated in the original contract between the government and the lender, of which use the shareholder receives the benefit in the way of dividends.
IL The only other requirement of the act of Congress was, that the taxes on the shares of the national banks shall not be “at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State.
This, too, has been complied with. The statute of the State expressly forbids a higher rate of taxation.
This last proviso does not refer to corporations of any kind, but refers to private individuals—citizens of the State. The tax on bank shares is not to exceed the rate assessed upon other moneyed capital in the hands of such persons.
We submit that the words “moneyed capital” refer on y to such moneyed capital as is liable to assessment. . eJ not refer to bonds of the United States owned by in 1V1 uals, for they are not moneyed capital liable to assessmen. No assessment at all is to be made on such property.
The moneyed capital in the hands of an indivi. ua i to assessment is first to be ascertained. The nite bonds, if he has any, are to be deducted. The a all° his moneyed capital liable to be assessed, and t e asses
is made on it at precisely the same rate as that upon the shares of stock in a bank.
Congress did not say and did not mean all the moneyed capital in the hands of individual citizens, but only that which “ is assessed ” or, in equivalent words, is liable to assessment.
No other construction could have been intended by Congress—for that body well knew that United States bonds held by individuals were not liable to be assessed by State authority—and that this State had not the power to pass an act which should subject them to State taxation. They will not be supposed to have prescribed an impossibility, or the enacting of an unconstitutional statute as a condition on which alone a State could have the benefit of the privilege tendered by this act of Congress of taxing the shares of national banks.
We assert that, in this proviso, “ rate ” means the rate per cent. If the assessment on moneyed capital in the hands of individuals is at the rate of two per cent., the assessment on the shares of stock cannot be at a greater rate.
Nor was any different meaning given to this word by this court in the case of Van Allen v. The Assessors where it occurs in the other proviso. The act of Congress had required that the tax on the shares of national banks should not exceed the rate imposed upon the shares in State banks. No tax has been imposed by the State upon the shares of State anks. They were left, as before, to be assessed on their capital, and this operated unequally, as where assessments were made upon capital, certain deductions could be made ic could not be made when assessed upon shares. The ax t erefore on the shares of national banks was at a rate exceeding the tax on the shares of State banks by the whole mount of the tax. If the rate of taxation was two per cent., a was the excess of rate over the rate on shares of State banks not taxed at all.
that insurance companies are taxed on their anv ' ’ aU United States bonds held by them, if
’ are exempt from taxation. But Congress has made no p. 254requirement as to such corporations. They are neither “ banking associations,” nor “ individual citizens.”
It was the policy of Congress to place the national banka upon an equal footing with the State banks with which they were to come in competition. It allowed the national banks to be taxed on “ all their shares,” but required that the tax should not exceed the rate imposed on the shares of State banks.
The national banks were not to be placed in competition with insurance companies, and needed no special protection as to them.
To protect them, however, against a possible abuse—a legislation which might discriminate unjustly, by authorizing a greater rate per cent, to be assessed on bank shares than on the taxable property of individual citizens,—the proviso last discussed was adopted.
We suppose that the only safeguards attempted to be secured by Congress at al] necessary to the protection of the national banks were the two following:
1st. Fairness of competition with State banks.
2d. Ho discriminating abuse of the taxing power on the rate per cent, as compared with taxable individual capital.
There was no necessity, therefore, for any provision in thé act of Congress as to insurance companies. Nor is any amendment called for. Insurance companies stand already upon the same footing as “individual citizens.” Their taxable capital is taxed at the same rate as the shares of banks. And so it should be. It was the intention of Congress, as was said in Van Allen v. The Assessors, to subject “all the shares” of banks to taxation, without deduction for any United States bonds they might hold, because they had availed themselves of the privilege given by that act to use the bonds in a way to secure large profits, but by a use neither contemplated nor permitted at the time of the original contract between the government and the bondholder.
But insurance companies had no such privilege and could make no such use of the bonds. They could only hold them as “individual citizens” did, making no more on them than p. 255was agreed upon when the bonds were issued, viz., simple interest.
Mr. Justice NELSON delivered the opinion of the court.
These cases are writs of error to the Court of Appeals of the State of New York. The relator in the first is an owner of one hundred and fifty-two shares of stock in the National Bank of Commerce in New York.
The capital of the bank consists of one hundred thousand shares of one hundred dollars each, and which is invested in United States securities, and exempt from State taxation. The commissioners of taxes, in making their assessments, valued the shares at par, and imposed upon them the same rate of tax as was imposed upon other personal property in this city.
The commissioners, in their return to the certiorari, state that in estimating the value of the shares they made no deduction on account of the investment of the capital of the bank in United States securities. That in the valuation of the personal estate of individuals, these securities held and owned by them were deducted and the tax assessed on the balance; and the like deductions were made from the capital of insurance companies.
th a88e88men^ this tax on the shares of the relator in fft q °f Commerce was carried to the Supreme Court o he State, and, after argument, was affirmed, and thence
o e ourt of Appeals, where the judgment of the Supreme thTi WT a®rmed- Tbe case is now here on error under the twenty-fifth section of the Judiciary Act.
The first objection taken to the legality of the tax is on
shfliS°Ucd ^at the comm^ssioners in the valuation of the invpa+^e U8tt !° deduct amount of capital of the bank regard nJ* 1 States securities, and, hence, refused to 18 eduction in the valuation of the shares.
and, been considered bJthis court> Allen v dellberatlou, determined, in the case of Van •-—_ 6 ssessors,* and need not again be examined.
* 3 Wallace, 578.
That case was one of a large class of cases, which were very thoroughly argued, and received, at the time, the most careful examination of the court.
The next, and perhaps the only material question in the case, arises upon a construction of a clause in the first proviso of the forty-first section of the National Bank Act. After referring to the taxation of these shares by State authority, it provides: 44 But not at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such States.”
It is argued that the assessment upon the shares of the relator is at a greater rate than that of the personal property of individual citizens, upon the ground that allowance was made on account of United States securities held and owned by them, when at the same time the deduction was disallowed to him.
The answer is, that upon a true construction of this clause of the act, the meaning and intent of the law-makers were, that the rate of taxation of the shares should be the same, or not greater, than upon the moneyed capital of the individual citizen which is subject or liable to taxation. That is, no greater proportion or percentage of tax in the valuation of the shares should be levied than upon other moneyed taxable capital in the hands of the citizens.
This rule seems to be as effectual a test to prevent unjust discrimination against the shareholders as could well be devised. It embraces a class which constitutes the body politic of the State, who make its laws and provide for its taxes. They cannot be greater than the citizens impose upon themselves. It is known as sound policy that, in every well-regulated and enlightened state or government, certain descriptions of property, and also certain institutions—suc as churches, hospitals, academies, cemeteries, and the like-are exempt from taxation; but these exemptions have never been Regarded as disturbing the rates of taxation, even w ere the fundamental law had ordained that it should be uni orm.
The objection is a singular one. At the time Congress p. 257-------------------------------------------------- ----------------------------------- - ---------------- 4-------------------
enacted this rule as a limitation against discrimination if was well known to that body that these securities in the hands of the citizen were exempt from taxation. It had been so held by this court, and, for abundant caution, had passed into a law.
The argument founded on the objection, if it proves anything, proves that these securities should have been taxed in the hands of individuals to equalize the taxation; and, hence, that Congress by this clause in the proviso intended to subject them, as thus situated, to taxation; and, therefore, there was error in the deduction. This we do not suppose is claimed. But if this is not the result of the argument, then, the other conclusion from it is, that Congress required that the commissioners should deduct the securities, and at the same time intended the deduction, if made, should operate as a violation of the rate of the tax prescribed. We dissent from both conclusions, and think a sound construction of the clause, and one consistent with its words and intent, is also consistent with all the acts of Congress on the subject.
The commissioners, in their return, state that insurance companies created under the laws of the State, and doing usiness in the city of New York, were respectively assessed upon the balance of their capital and surplus profits, liable o axation, after deducting therefrom such part as is inves in United States securities.
objection taken is, that the taxation of the shares
6 at°r 18 llle&a1’ on account of this deduction,—it the d a epiarture from the rate of assessment prescribed in uie clause already cited. ofLhal^We+r i8’that this clause does I10t refer to the rate to prevent^ lnsurance companies as a test by which fined to th dlSCnmination a£ainst the shares; that is hands nf • rate°f assessmentsupon moneyed capital in the Xl “ Clti2ens- These are not
wenifthevi°r 8 contemP^ati°n of Congress; but n it they were, the answer we have already given to the
L’1Vt 17
deduction of these securities in the assessment of the property of individual citizens is equally applicable to them. These companies are taxed on their capital, and not on the shareholder, at the same rate as other personal property in the State. There is not much danger to be apprehended of a discriminating tax in their favor, prejudicial to the rights or property of the citizen; and, of course, to the rights of the shareholders in these national banks, who stand on the same footing.
The relator in the second case, Ralph Mead, is the holder and owner of twenty-five shares of stock in the Corn Exchange Bank, in the city of New York, incorporated under the laws of the State.
The act of April 23d, 1866, imposed a tax on the shares of these hanks.
It is insisted that the tax is illegal on account of the refusal of the commissioners to deduct the United States securities in which a portion of the capital stock of the bank was invested.
The general question was distinctly presented in the bank cases of the last term, of which Van Allen v. The Assessors was one of the class,* and disposed of. It was there said: “ But, in addition to this view, the tax on the shares is not a tax on the capital of the bank. The corporation is the legal owner of all the property of the bank, real and personal; and within the powers conferred upon it by the charter, and for the purposes for which it was created, can deal with the corporate property as absolutely as a private individual can deal with his own. . . . The interest of the shareholder entitles him to participate in the net profits earne by the bank, in the employment of its capital, during the existence of its charter, in proportion to the number of his shares; and upon its dissolution or termination, to his proportion of the property that may remain, of the corporation, after the payment of its debts. This is a distinct, indepen dent interest or property, held by the shareholder like any
* 8 Wallace, 573, 583, and 584.
other property that may belong to himand, we add, of course, is subject to like taxation.
It was supposed, on the argument, that this principle was in conflict with that which governed the decision of this court in the case of Gardner v. The Appeal Tax Court* but this is a mistake. That case turned upon the construction of an act of Maryland exempting the bank from taxation on account of a large bonus to the State for the extension of the charter. This court held, that upon a true construction of the act, the stockholders were within the scope of the exemption. The court say: “ In whatever way we examine the acts of 1813 and 1821, we are of opinion that it appears from the eleventh section in those acts, to have been the intention of the legislatures which passed them, to exempt the stockholders from taxation as persons, on account of the stock which they owned in the banks.”
Some other questions were discussed on the argument, besides those we have noticed, but they are questions of which this court cannot take cognizance. We have examined all of them that are here under the twenty-fifth section of the Judiciary Act.
Judgment of the court below Affirmed,
e CHIEF JUSTICE : In concurrence with my brothers ayne and Swayne, I dissent from the opinion just read. e reasons of dissent sufficiently appear in our dissenting
ln Ca8e Allen Assessors, read at the erm, and we do not think it necessary to repeat them.
Graham v. United States.
granted XltiIimaftLafhrmal de!ivery of P°8session real property
of the title ’ f execu^10n of the grant, for the investiture
2. The proceeding had upon such-delivery—called, in the language of the country, the delivery of juridical possession—was usually taken by the magistrate of the vicinage, with assisting witnesses, in the presence of the adjoining land proprietors, and involved, when there was any uncertainty in the description of the premises, a measurement of the land and the establishment of its boundaries. 8. The record of a proceeding of this nature must control the action of the officers of the United States, in surveying the land granted, when the grant is confirmed.
On the 22d of April, 1841, a grant of land was issued to one Mayors by the Governor of California. The grant describes the land granted as that formerly occupied by Francis Moss, and known by the name of Zayante, bordering on the village of Brancoforte and Mission of Santa Cruz, and as being in extent “ longitudinally one league, and latitudinally one-half league, more or less,” as explained by an accompanying diagram.
This grant was transferred to the appellants by the grantee, and was by them presented to the Board of Land Commissioners for confirmation, and was confirmed by the board on the 26th of June, 1855. An appeal taken from the decree by the United States was withdrawn on the 9th of February, 1857, and by consent of the district attorney, upon instructions from the Attorney-General, a decree was entered on that day, by the District Court, giving leave to the claimants to proceed upon the decree of the board as a final decree. In the proceedings before the board the claimants produced an original record of juridical measurement, from which it appeared that the grantee was formally put in possession of the premises granted, by the proper officer, to the extent of one square league in length by three thousand varas in width.
The decree of the board describes the land as fo
“ The land of which confirmation is made is situated in County of Santa Cruz, and is known by the name o ay ante, being the same which is now held and occupied by claimants, and is of the extent of one league in length, an a half league in width, a little more or less, as shown y^ original grant, record of juridical possession, and map p. 261the case, to all of which reference is hereby made for a more particular description.”
In surveying the land confirmed, the Surveyor-General of the United States for California did not follow the measurement contained in the record of juridical possession. The District Court, for that reason, set it aside, and ordered a new survey which should correspond with such measurement. Such survey being made was approved by the decree of the District Court, October 26th, 1863. From this decree the present appeal was taken, and the question presented is, whether this survey embraces the land granted and confirmed.
Mr. Reverdy Johnson, for the appellants.
Mr. Wills, contra.
Mr. Justice FIELD delivered the opinion of the court.
As we have had occasion heretofore to observe,* the Mexican law, as well .as the common law, made a formal delivery of possession, or livery of seizin of the property, essential, after the execution of a grant, for the investiture of the title. This proceeding was usually taken by the magistrate o the vicinage, with assisting witnesses, in the presence of t le adjoining land proprietors, who were summoned for the occasion. As preliminary to the actual delivery of posseslaU(^ ^ad bo be measured and its boundaries estab Js e, when there was any uncertainty in the description o premises. Various regulations for the guidance in T^f n!^tter8 magistrates were prescribed by law.
a w ich concerns the present inquiry is that they reimo t e magistrate to preserve a record of the measure-same ’ °^er 8bePs of the proceeding, to have the authe f e8te^ assi8ting witnesses, and to furnish an in thJ1]1C C°Py t0 ^ie granbee* By this proceeding—called «onlTT coun^ry bhe delivery of juridical pos_ _ e an^ granted was separated from the public
* Malarin v. The United States, 1 Wallace, 289.
domain, and what was previously a grant of quantity, became a grant of a specific tract.
The record of a proceeding of this nature must necessarily control the action of the officers of the United States in surveying land claimed under a confirmed Mexican grant.
In the present case, juridical possession of the land had been delivered to the grantee, and the record was produced and given in evidence. The first survey of the land made by the Survey or-General of the United States for California, after the confirmation, did not conform to the measurement shown by this record. The District Court, for that reason, set the survey aside, and directed a new survey, which should correspond with that measurement.
To the application of the appellants for a change in the location, the District Court held that there were insuperable objections presented by the action of the officers under the former government, and that it was the duty of the court to locate the land according to the measurement made by the alcalde, and signed by him and the assisting witnesses in the record of proceedings upon the delivery of possession.
We fully concur in this view with the District Court, and, therefore,
Affirm its decree.
1
Brown Brothers & Co. had filed a creditor’s bill against the Bank of Mississippi before having obtained judgment at law, which, however, was obtained soon after the bill was filed. After this a receiver was appointed and proceeded to take possession of the assets of the han, collect debts and compromise with debtors, and with the proceeds to pay the debts of the bank. ,
2
The defendant, Mrs. Bass, having purchased land upon which the had a mortgage, made an arrangement with the receivers by whic latter transferred to her the mortgage and took her notes secure mortgage on the same land. These notes he passed to Brown ro & Co. in part satisfaction of their judgment against the bank, quently, after these proceedingshad gone on for twelve years, t e c itor's bill filed by Brown Brothers & Co. was dismissed for wan of Brown Brothers & Co. had been commenced in June Term, 1843, and after a litigation of some thirteen years the bill was dismissed for want of jurisdiction, in October, 1856. The grounds of the dismissal were, that the judgment at law of Brown Brothers & Co. had not been obtained and execution issued and returned before the commencement of the suit. The receiver had been appointed at the June Term of the court in 1844, and consequently had been engaged in collecting the assets of the bank and converting them into money, to be applied in discharge of its indebtedness, upwards of twelve years at the time the bill was dismissed. The defence in the case rests upon the effect of the decree dismissing the bill in respect to the past acts of the receiver, in the collection of the debts of the bank, in the settlement with its debtors, and in the general management of its assets for the period mentioned. On the part of the defendant it is insisted that his acts were void, and are to be so regarded in all subsequent deal ings with the assets since the dismissal of the bill; and hence, that the adjustment of the debt of C. R. Bass and the taking of the new securities to Brown were without authority and illegal, or if legal, that the new securities belong to the and n°t Brown. In order to test the force and va-1 ity of these positions it is material to bring into view an other branch of this case. After the dismissal of the bill, and in January, 1857, it was ordered, among other things, that the cause should be re ained in court for the purpose of proceeding against the eceiver, to enforce and close his account, and to compel the e tn of the assets of the bank, or their proceeds, into urt, and the court recalled a previous order vacating his 011 the 27th January, 1855, it was, among re T lng8’ 0I>dered by the court that the receiver should not accoun^’ au<^ “ that he should bring into court all erteS> b* i’ Ch°8es action, and moneys, and all other propa? lc 1 came into his hands, and the proceeds thereof, 2 securities, notes, bonds, liens, mortgages, as he mag Mitchell v. Burlington. 1 A provision in the charter of a city corporation authorizing it to money for any public purpose, whenever, in the opinion of the y Council, it shall be expedient to exercise it, is a valid power. Rogers T Burlington (3 Wallace, 654) affirmed. d if the 2. Money borrowed by such a corporation to construct a plank-road, f Id. 618.