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The case further appears in the opinion. Messrs. Geo. H. Williams and J. H. Mitch ell, for plaintiffs in error:

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This was an action of ejectment originally | Shartzer v. Love, 40 Cal.; Sm. Merc. L., 115; 2 commenced by Ben Holladay, now plaintiff in Washb. Real Prop., 3d ed., 621, 300; 4 Crui. error, in the Probate Court of the County of Dig. 205; 1 Am. Cas. 563, 567; Dunl. Paley, Arapahoe, Colorado, against the defendant in Ag., 192 and n. 3, 198; Chase v. Dana, 44 III., error. The case was transferred by stipulation 262; Snow v. Perry, 9 Pick., 541; Gibson v. to the District Court of the First Judicial Dis- Colt, 7 Johns., 390; 6 Hill, 336; 23 Wend., 267; trict of the Territory for the County of Arapa- 13 Wend., 521; Rossiter v. Rossiter, 8 Wend., hoe, where judgment was rendered for the de- 494; 2 Scott (N. R.); 3 Burr., 1364, 1446; fendant. The plaintiff took the case to the Su- Cowp., 600; 6 East, 105; Broom, Leg. Max., 363 preme Court of the Territory by writ of error, and n. 7, 364; 3 Lev. 370; Mees. & W., 516; 3 where the judgment was affirmed. The de- Atk., 136; 2 B. & Ald., 637, 143; Tarleton v. fendant derived title under a power of attorney, Staniforth, 5 T. R., 694; 5 Scott, 431; 2 Wm. executed by Holladay and wife to one Hughes, Saund, 96 a, n.; Jackson v. Veeder, 11 Johns., and a deed executed by Hughes in the name of 169; 3 East, 441; 3 Burr, 1446; 4 T. R., 87; Holladay alone. Shep. Touch., 81, 82; Finch, Law, 60; Gr's Crui. ch. 21, sec. 7; 2 Cai., 254; 3 Johns. Cas., 180; 5 Greenl., 336; 10 Ves., 225; 3 Blackf., 201; 7 Blackf., 66; 6 Clarke, 145; 6 Blackf., 431; 2 Mo., 43; Isherwood v. Oldknow, 3 M. & S., 382; LeRoy v. Beard, 8 How., 465; Com. Dig., Power, 1, and c. 6; 1 Bl. R., 283; Nind v. Marshall, 1 Brod. & B., 319; 10 Wend., 219, 252, 218; 1 J. J. M., 292; Solly v. Forbes, 4 J. B. Moore, 448; 5 Pet., 349; 6 Hill, 338; 3 D. & E., 757; 4 D. & E., 177; 5 Es. Ca., 72, n. 65; 15 East, 45; 2 Camp. N. P., 555; 6 Cow., 354; 9 Wheat., 648; 2 H. Bl., 618; Amb., 186; Story, Ag., sec. 58; Salk., 283; 13 Wend., 527; 2 Pick., 345; Bell, Com. L., 410; 2, Kent, 618; 7 Mo., 420; Vanada v. Hopkins, 1 J. J. M., 285, 287; 23 Wend., 268; 3 Wash. (C. C.), 151; 2 Wash. (C. C.), 133; 4 Wash. (C. C.), 551; 7 Barn. & C., 278; 1 Pet., 290; 17 Pick., 222; 1 Met., 378; 5 Wheat., 326; Bac. Abr., Covenant, F; 5 D. & E., 564; 2 Bro. Ch., 638; 5 Johns., 58; 12 Johns., 436; 13 Johns., 365; 7 Johns., 390; 5 Conn., 229; 1 Mich., 421; 8 How., 466; 1 Vern.; 1 Sug. Pow., 1; 2 Greenl. Crui. (top), 236: Bouv. L. Dic., tit. Powers, 361; 4 Kent, Com., 334; 2 Washb. Real Prop., p. 300; 5 B. & Ald., 628; 11 Mass., 29; Dolton v. Cain, 14 Wall., 474, 20 L. ed., 830.

Hughes had no right or authority, under said power of attorney, to execute a deed in the name of Ben. Holladay alone and, therefore, the deed in question is void. He was invested with a special power to sell and convey certain lands | in the joint names of Ben. Holladay and N. A. Holladay. All the expressions in the power of attorney are full and clear to this effect.

Hughes violated the spirit and letter of his warrant of attorney. The power which he exercised, to sell the land of another, was never created.

Story, Ag., secs. 17, 42, 68, 166; 2 Wash. R. P., 317; Snow v. Perry, 9 Pick., 542; Chase v. Dana, 44 Ill., 262.

The power was to make a deed in the name of two persons. The power exercised was the making of a deed in the name of one person. This was not a legal and valid compliance with the authority granted.

Batty v. Carswell, 2 Johns., 49; Gibson v. Colt, 7 Johns., 393; Rossiter v. Rossiter, 8 Wend., 494, 499.

Courts cannot dispense with any of the forms or ceremonies required for the execution of a power, on the ground that they are not necessary.

Hawkins v. Kemp, 3 East, 436; Thruxton v. Atty-Gen., 1 Vern., 340.

The purchaser is chargeable with notice that the deed was not executed in accordance with the power.

Story, Ag., secs. 72, 126, 133; Rogers v. Knceland, 10 Wend., 218.

Messrs. P. Phillips, James Hughes and J. W. Denver, for defendant in error:

The deed executed by B. M. Hughes, in the name of and as attorney in fact for Ben. Holladay, to Richard Whitsitt, for the lots in controversy, was valid, and did pass the title of said Holladay to said lots, under the power given Hughes.

Stat. of Colorado Territory, approved Nov. 1, 1861; Story, Ag., secs. 58, 66, 165, 166. 170, 172; Wilson v. Troup, 2 Cow., 228, 195; Sumner v. Williams, 8 Mass., 214; Fowle v. Bigelow, 10 Mass., 384; Whallon v. Kauffman, 19 Johns., 104; Com. Dig. Atty., 15; Bk. v. Aymar, 3 Hill, 262; Nixon v. Hyserott, 5 Johns., 58; Batty v. Carswell, 2 Johns., 48; 2 Cow., 228, 195; Sug. Pow., 459; Mos., 146; Doug., 292, 280; Vanada v. Hopkins, 1 J. J. Marsh., 288; Dodge v. Hopkins, 14 Wis., 630; Co. Litt., secs. 221, 283; Barber v. Harris, 15 Wend., 617; Shanks v. Lancaster, 5 Gratt., 110: Brac. Lib. 5, f, 4, 1, 6;

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Mr. Justice Field delivered the opinion of the court:

In February, 1866, Ben Holladay and his wife gave to one Hughes a power of attorney to sell and convey certain real property, situated in Denver City, in the Territory of Colorado, the title to which was stated in the power to be in Holladay. In September following Hughes sold and conveyed in the name of Holladay alone, and as his attorney, the premises in controversy. The question presented is, whether the deed thus executed in the individual name of Holladay, and not in the joint names of himself and wife, was sufficient to pass his title.

In most of the States a married woman cannot, in the absence of statutory authority, execute, either alone or in connection with her husband, a valid power of attorney to convey her interest in real property. She can pass her interest only by uniting personally in a conveyance with her husband, and acknowledging upon a separate examination apart from him, before a public officer, that she executes the conveyance freely, without any fear of him, or compulsion from him. The private examination is required to protect her from the coercion or undue influence of her husband, and her acknowledgment is, therefore, considered as an essential preliminary to the validity of any transfer by her. The private examination is in its nature personal; it is a matter in which

she cannot be represented by another. A privy |
acknowledgment by attorney, as observed by
Bishop (Mar. Women, sec. 602), would seem to
involve a contradiction, and certainly would in
a great degree defeat the object which her per-
sonal examination was intended to secure. Sum-
ner v. Conant, 10 Vt., 19; Mott v. Smith, 16
Cal., 533; Lewis v. Coxe, 5 Harr. (Del.), 401.
Whether any statute exists in Colorado which
authorizes a married woman to convey her in-
610*] terest in real property by *attorney we
are not informed. Counsel, whose attention
was called on the argument to the matter, were
not aware that any such statute exists.

power is given by several the interest of each in the property, to which the power refers, may be separately transferred.

It is proper to state that in sustaining the deed executed in the present case we confine ourselves to its operation in passing the existing title of Holladay. It contains a covenant of general warranty, and we express no opinion on the question whether the power authorized the attorney to make any such covenant for his principal.

Judgment affirmed.

Assuming, however, that such statute does THOMAS W. TAPPAN, Collector of Taxes, etc., exist, or that, without any such statute, the authority of a married woman to convey, in con

Chicago, Appt.,

v.

CHICAGO.

(See S. C., 19 Wall., 490-505.)

Taxation of national bank stock-power of
State, limitations of-personal property,
where taxed-bank stock-jurisdiction of
State.

1. The General Assembly of Illinois could, in 1867, provide for the taxation of the owners of shares of the capital stock of a national bank in that State, at the place within the State where the bank was located, without regard to their places of

nection with her husband, which is conferred, THE MERCHANTS' NATIONAL BANK OF implies a power to appoint an attorney for that purpose and there are adjudged cases which proceed upon that theory-we do not see any objection to the validity of the deed actually executed in the name of Holladay alone, or to its operation in passing the title. The wife of Holladay evidently joined in the power upon the supposition that she might, in case of surviving her husband, have a right of dower in the real property of which he was seised during her coverture, and that the release of such right might be required for an advantageous sale of the property. But in fact she could not in any event have had a right of dower in his real property in Colorado after its sale by him, although she did not unite in the sale. By a statute of that Territory the right of dower of the widow attaches only to lands of which the husband dies seised. Her joint execution with him, whether in person or by attorney, of the deed of the premises in controversy, would not therefore, have imparted any greater interest, present or prospective, than his separate conveyance.

Undoubtedly, it is a rule that a special power of attorney is to be strictly construed, so as to sanction only such acts as are clearly within its terms; but it is also a rule of equal potency that the object of the parties is always to be kept in view, and where the language used will permit, that construction should be adopted which will carry out, instead of defeating, the purpose of the appointment. Here the object, and the sole object, of the power was to enable the attorney to pass the title freed from any possible claim of the wife; and under the law of Colorado that result could be accomplished by the deed

of the husband alone as fully without as with

her signature.

A power of attorney created by two or more 611] persons possessing *distinct interests in real property may, of course, be so limited as to prevent a sale of the interest of either separately; but in the absence of qualifying terms, or other circumstances, thus restraining the authority of the attorney, a power to sell and convey real property, given by several parties, in general terms, as in the present case, is a power to sell and convey the interest of each, either jointly with the interests of the others, or by a separate instrument. The cases are numerous where a power given by several has been held invalid as to some of the parties, and yet sufficient to authorize a transfer of the title of the others. The decision of those cases has proceeded on the doctrine stated, that where a

residence.

2. The power of taxation of any State is limited to persons, property, or business within its jurisdiction.

to the contrary, follows the person of the owner, 3. Personal property, in the absence of any law and has its situs at his domicil.

4. But, for the purposes of taxation, it may be separated from him, and he may be taxed on its account at the place where it is actually located. 5. Shares of stock in national banks are personal property, but the law which creates them may separate them from the person of their owner for the purposes of taxation, and give them a situs of their own. This has been done by section 41 of the National Banking Act.

6. This, therefore, is a law of the property, and every owner takes the property subject to this power of taxation under state authority.

7. The State within which a national bank is sit

uated, has jurisdiction, for the purposes of taxation, of all the shareholders of the bank, both resident and non-resident, and of all its shares, and may legislate accordingly.

8. The Constitution of Illinois of 1848, contains no prohibition against such method and place of taxation. [No. 567.]

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This was a bill in equity, exhibited in the court below, by the appellee against appellant, Nov. 30, 1872, to enjoin the collection of state, county and municipal taxes, levied under the laws of Ill., upon the shares of stock in the appellee, Bank.

The bill of complaint states:

That the complainant, appellee, is a banking Corporation, created under and by virtue of the Act of Congress, approved June 3, 1864, known as the National Banking Act, and located in the Town of South Chicago, in the County of Cook and State of Illinois:

NOTE.-State taxation of national banks-see note, 45 L. R. A. 737.

Taxation of capital stock of corporations-see note, 58 L. R. A. 513.

The prayer of the bill is that said taxes may be canceled and declared void, and the collection thereof perpetually enjoined, and that the said Tappan and his successor in office be perpetually enjoined from any attempt to collect said taxes, and from selling or attempting to sell, said shares or any of them therefor, and for general relief.

To this bill defendant below filed a demurrer, and the court entered a final decree perpetually enjoining the collection of said taxes, in accordance with the prayer of the bill.

From this decree the defendant below appealed to this court.

Messrs. James K. Edsall, Jas. P. Root and J. B. Hawley, for appellant:

That the exhibit attached to the bill contains | complainant, and threaten a multiplicity of a full list of the owners and holders of the suits against complainant if it pays the same, or shares of the capital stock of complainant as it deducts the amount from any dividends upon was on the first day of April, 1871, with the said stock, and that, if collected, irreparable place of residence, and number of shares held by damage will be done the stockholders; that the each shareholder; and that, as appears from complainant is the trustee of the stockholders, said list, many of said shareholders do not re- and as such is entitled to protect their interests; side in Illinois, and many others who do reside that a sale of the shares of stock would prejutherein, reside in school and park districts, dice the complainant in the public mind, etc. towns and counties, other than the Town of South Chicago, the South Park District, and the County of Cook in the said State; that under and in accordance with the provisions of the Act of the General Assembly of the State of Illinois, entitled "An Act to Provide for the Assessment and Collection of Taxes on the Shares of Capital Stock in Banks and Banking Associations," approved June 13, 1867, state, county, town and district taxes had been pretended to be levied upon all the shares of the capital stock of complainant, with reference to the ownership thereof, Apr. 1, 1871, such taxes being at the rate of twenty-six mills upon the dollar of assessed value of said shares, which was fixed by the assessor of said town at the rate of the sum of something over one third the par value thereof in accordance with the limit of valuation prevailing throughout said county; that a warrant for the collection of said taxes had been issued and delivered to said Tappan, the Collector of said town, and that said Collector, under the authority of said warrant, had demanded of complainant the payment of said taxes, which amounted in the aggregate, on all the shares of said stock, to about the sum of $4,005.64; and that the same be deducted from any dividend which may be declared on said capital stock, and threatens to sell said shares by virtue of said warrant, unless complainant complies with such request; that in the assessment roll of personal property in said Town of South Chicago, for the year 1871, for which said taxes are levied, and also in said warrant, the names of the shareholders of shares in the complainant's capital stock are stated, and separately, opposite thereto in appropriate columns, are also stated the residence of each shareholder, the number of shares held by each, and the assessed value thereof; and in said warrant the amount of tax levied on the shares of each shareholder is also stated opposite his, her or its name; that said taxes are illegal and void, for the following reasons:

First. Because they are levied in the absence of said shareholders residing in places other than the said Town of South Chicago, and no jurisdiction was ever obtained over them or of the shares held by them.

Second. Because the said Act of June 13, 1867, in accordance with and under which said taxes were pretended to be levied, is void.

Third. Because they are contrary to the Constitution of the United States, and the said National Banking Acts, and the Acts Amendatory thereof.

Fourth. Because the said Act of June 13, 1867, is contrary to and in violation of the provisions of the Constitution of Illinois and, therefore, void; and for other good and suffi

cient reasons.

It is also averred that the shareholders in the complainant Corporation refuse to pay said taxes and forbid the payment thereof by the

1. The assessment of the taxes in question, upon non-resident as well as resident shareholder, was fully authorized by both federal and state legislation.

Fortieth section of the National Banking Law of 1864; 13 Stat. at L., 111; 41st section of same Act; Ibid., 112; Act, Cong., approved Feb. 10, 1868, 15 Stat. at L. (1868), p. 34.

At the special session of the General Assembly of the State of Illinois, held in June, 1867, the Act referred to in the bill was passed, entitled "An Act to Provide for the Assessment and Collection of Taxes on the Shares of Capital Stock in Banks and Banking Associations," approved June 13, 1867.

Laws, 1867, 1st special sess., p. 6; Gross, Stat., ed. of 1869, p. 618.

The Act appears to have been passed in order to bring the laws of Illinois, relative to the taxation of shares of stock in national banks, into harmony with the provisions of the National Banking Law on that subject, and in conformity to the opinion of this court, as held in Van Allen v. The Assessors, 3 Wall., 581, 18 L. ed., 233; Bradley v. People, 4 Wall., 459, 18 L. ed., 433.

That shares of stock in national banks are subject to taxation, by or under state authority, at the same rate as other moneyed capital, has long since ceased to be a debatable question in this court.

It was competent to require the bank to pay the tax levied upon such shares of stock out of the dividend declared thereon.

Nat. Bk. v. Commonwealth, 9 Wall., 353, 19 L. ed., 701; Lionberger v. Rouse, 9 Wall., 468, 19 L. ed., 721.

II. The situs of shares of stock in national banks owned by non-resident as well as resident shareholders is, for the purpose of taxation, at the place where the bank is located.

It appears from the bill that 290 of the shares of stock in the Bank in question were owned by non-residents of the State, and that 200 of such shares were owned by persons residing in the west division of the City of Chicago, and not in the south division of said City or Town of South Chicago, where the Bank is located. It is

claimed that, as to such shares, the situs followed the persons of their owners, and that no jurisdiction existed for the purposes of taxation, either of the persons of the shareholders, or of the subject matter of such shares in the Town of South Chicago, where the taxes were assessed.

This argument seems to be based upon the general rule of the common law, that the situs of personal property follows the person of the owner and, therefore, that such property, if it is taxed at all, must be taxed at the domicil of the owner.

1. It is at least doubtful whether this rule ever had any just application to the shares of stock in incorporated companies, which, for most purposes, must be controlled by the lex loci of the corporation.

Whart. Conf. of L., secs. 11, 12; Story, Conflict L., 7th ed., secs. 364, 383, and authorities cited in n.

It is said that "shares of stock are incorporeal personal property, and as such are incapable of having any situs save at the domicil of the owner." We ask, why is the situs necessarily at the domicil of the owner? The share has no tangible nor physical existence there. The certificate, or paper evidence thereof is not the share itself. The shares of stock can only be transferred upon the books of the corporation at the place where its business is carried on. These books are evidence of the ownership of the shares, and are kept in the place where the bank is located. 12 Stat. at L., 102, 112.

Moreover, the property of the Bank is there situated, and it has no power to carry on business at any other place, except as incidental to its general business. Everything which gives a share value is at or immediately pertains to the Bank. It is true, the legal title of the property of the Bank is vested in the Corporation, and not in the shareholders personally. But the shareholders are the equitable owners of such property, after discharging the liabilities of the Corporation. They have a pecuniary interest in the property of the Bank which the courts will protect, and which is consequently subject to taxation.

People v. Com., 4 Wall., 258, 18 L. ed., 350. Why may not this interest or property of the shareholder be declared by law to have its situs at the place where the subject-matter thereof is, and be there subject to taxation?

2. The rule, that the situs of personal property follows the person of the owner, is itself a mere fiction of the common law, and is subject to modification by competent legislative authority.

Story, Confl. L., sec. 550; Nat. Bk. v. Commonwealth, supra.

Wherever the question has arisen, the state courts have uniformly held that the fact that the owners of the shares were non-residents of the State, afforded no ground of exemption from such taxation.

Whitney v. Ragsdale, 33 Ind., 107; State v. Cook, 32 N. J. Law, 347; Packard v. Lewiston, 55 Me., 456; Duer v. Small, 17 How. Pr., 204; Prov. Inst. v. Boston, 101 Mass., 575; People v. Comrs. of Taxes, 35 N. Y., 423.

The case last cited was affirmed in this court. People v. Commissioners, 4 Wall., 244, 18 L. ed., 344.

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The question was fully considered by the Supreme Court of Illinois in the case of The First Nat. Bk. of Mendota v. Smith, reported in 5 Chic. Leg. N., 253, in which the law before cited was not only held valid under the Constitution of that State, but the right to impose taxes upon the shares in national banks owned by non-residents was maintained in an opinion which we believe to be unanswerable.

III. The Act under which the taxes in question were levied is not in conflict with the Constitution of Illinois.

Upon this question the decision of the Supreme Court of Illinois in Bk. v. Smith, supra, and other cases, holding the Act to be constitutional, must be received as conclusive authority. McVeagh v. Chicago, 49 Ill., 318.

In the construction of the statutes and Constitution of a State, the Federal Courts are governed by the decisions of the state courts. Leffingwell v.. Warren, 2 Black., 599, 17 L. ed., 261; Suydam v. Williamson, 24 How., 427, 16 L. ed., 742; McKeen v. Delancy's Lessee, 5 Cranch, 22; Luther v. Borden, 7 How., 1; Nesmith v. Sheldon, 7 How., 812; Massingill v. Downs, 7 How., 767; Van Rensselaer v. Kearney, 11 How., 297; Webster v. Cooper, 14 How., 504. Mr. Melville W. Fuller, for appellee: I. The assessment in question and the Law of June, 1867, under which the tax authorities assume to proceed, are invalid and void, because in contravention of settled fundamental principles of taxation, and in conflict with the Constitution of Illinois.

1. The power of taxation cannot be exercised unless there be jurisdiction over either persons or property.

St. Louis v. Ferry Co., 11 Wall., 430, 20 L. ed., 194; Hoyt v. Commissioners, etc., 23 N. Y., 228; Cooley, Const. Lim., 500; State Tax on Foreign Held Bonds, 15 Wall., 319, 21 L. ed., 186.

2. What, then, is the Law of 1867, in relation to assessment and collection of taxes upon bank shares? Is the proceeding in personam or in rem? Obviously, unless as to shares owned by non-residents, this enactment assumes to authorize the assessment and collection of taxes in personam, and this I understand the Attorney-General to concede.

It does not authorize an assessment on the banks themselves, but does undertake to give the assessment, made at the place of the bank's location, force and effect as against shareholders not there resident.

The warrant is to run, not against a specified rem, but against a person, and thereby becomes a lien, not upon any particular thing, but upon all such person's personalty. Hill v. Figley, 23 Ill., 420.

In National Bank v. Commonwealth, supra, this court upheld a law of Kentucky which imposed state taxes upon bank shares at a certain fixed rate per cent., and required the bank to pay such taxes, but upon the distinct ground that this amounted to a tax in rem. and could be sustained upon the analogy of proceedings by attachment and garnishee process.

The obvious difference between taxing property "through the owner, and not the things themselves," is suggested and acted upon by this court in St. Louis v. Ferry Co., supra; Pelham v. Rose, 9 Wall., 103, 19 L. ed., 602; Miller v.

U. 8., 11 Wall., 296, 20 L. ed., 141; Pelham v. Way, 15 Wall., 201, 21 L. ed., 57; and Brown v. Kennedy, 15 Wall., 591, 21 L. ed., 193.

And I submit that the argument for appellant, which could only be entitled to weight from the stand-point that the Act of 1867 is directed against the shares as property, falls to the ground in view of the fact that the enactment relates to proceedings in personam merely. 3. But, upon the hypothesis that the Act were otherwise in its terms than it is, the question arises what is the character of the property upon which or upon the owner of which in respect thereto (as is the fact), it is claimed that these statutes were imposed?

Shares of stock represent a property interest, separate from the capital stock or real and personal property belonging to the corporation, and are not only governed by the rule that personal property follows the person of the owner, but being incorporeal personal property, are incapable of having any situs save at the domicil of the owner.

Williams, Pers. Prop., 191; Ang. & Ames, Corp., sec. 458; Union Bank v. State, 9 Yerg., 501; Van Allen v. Assessors, 3 Wall., 583, 18 L. ed., 234.

The weight of authority is, that it is not within the power of a State Legislature to cause a non-resident shareholder to pay taxes upon the value of his shares.

Union Bank v. State, supra; Conwell v. Connersville, 15 Ind., 150; Savings Bank v. Nashua, 46 N. H., 398; Dwight v. Mayor, 12 Allen, 322; Austin v. Aldermen, 14 Allen, 364; McKeen v. Northampton Co., 49 Pa., 519; State v. Ross, 3 Zab., 517; State v. Thomas, 2 Dutch., 181; Evansville v. Hall, 14 Ind., 27; Wilkie v. Pekin, 19 Ill., 160; State Tax on Foreign held Bonds, 15 Wall., 300, 21 L. ed., 179.

From the authorities and the reason of the thing, I think it may fairly be assumed that shares of stock are incapable of an actual situs, and cannot be held to be suscepitible of taxation ex-directo, as being property actually per se within the jurisdiction of the taxing power vested in the authorities at the place of the location of the corporation by which they were issued.

When it is said that the rule that personal property follows the person of its owner, is a legal fiction, the reference is to that kind of personalty which is in itself capable of an actual situs.

That such property follows the person is indeed a fiction, because the property is in fact in one place when the owner is in another. But when the right to dividends and to shares in a remote distribution of assets upon dissolution is declared to be with the possessor of such right, who can alone assert it, this is not a fiction, but the fact.

4. The law in question is invalid, because in contravention of the Constitution of the State of Illinois.

The National Currency Act of Congress, of June 3, 1864, made no provision as to the taxation of non-residents, and the complainant was organized under that Act.

The Act of Feb. 10, 1868, did provide that non-residents should be taxed where the bank is located, and not elsewhere. 2 Bright. Dig., pp. 56, 67.

But the Acts of Congress referred to make no such provision as to resident holders of national bank shares, who are to be taxed by the state authorities in such manner and place as may be lawful.

The Legislature of the State must impose such taxes in the manner and for the purposes designated in the State Constitution. It is not in the power of Congress to authorize a violation of the State Constitution in the assessment and collection of taxes for state or local purposes, nor has that body attempted to do so.

The Law of 1867 was enacted under the Constitution of 1848, the 2d and 5th sections of whose 9th article prescribed two rules of taxation.

The first rule is, "The General Assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property." Const. 1848, Art. IX., sec. 2; Gross, Stat., 1869, p. 37.

The second rule is: "The corporate authorities of counties, townships, school districts, cities, towns and villages, may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same. And the General Assembly shall require that all the property within the limits of municipal corporations belonging to individuals, shall be taxed for the payment of debts contracted under authority of law."

Const. 1848, art. IX., sec. 5; Gross, Stat., 1869, p. 37.

It is settled law that these provisions are restrictions upon the power of taxation by the Legislature or any authority under it.

Harward v. St. Clair Levee, etc., Co., 51 Ill., 130; Chicago v. Larned, 34 Ill., 267; Taylor v. Thompson, 42 Ill., 9.

Whatever distinctions may exist between municipal corporations proper and towns and cities, and such corporations as counties, it is manifest that counties, school districts, townships and cities are, for the purposes of corporate taxation, considered as municipal corporations, and the provisions of the Constitution of 1870 are to be taken as substantially the same

as those of the Constitution of 1848. See People v. Salomon, 51 Ill., 52.

The Act of June 13, 1867, conflicts with the constitutional rules in question, because it directs taxes to be assessed by the authorities of counties, towns, cities or districts upon the shares owned by shareholders in the county, town or district where the bank is located, without regard to the residence of the owner or the situs of the shares.

This cannot be valid whenever such owner resides in a different county, town or district, for the provisions of the Constitution require that all taxes assessed by the corporate authorities of counties, cities, towns or districts shall be uniform in respect to persons and property within the limits of such county, city, town or district. This compels the taxation of the stock owned by any resident of the State in the county, town or district where he resides, for the purpose of collecting county, city, town or

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