« ForrigeFortsett »
tion adopted and enforced in the state of Ohio, subjected to taxation at a greater rate than is imposed upon other moneyed capital in the hands of individual citizens, *contrary to section 5219 of the Revised Statutes of the United States.
The complaint is founded upon the allegation that the owners of what is termed credits in the law of Ohio (Rev. Stat. § 2730) are permitted to deduct certain kinds of their debts from the total amount of their credits, and such owners are assessed upon the balance only, while no such right is given to owners of shares in national banks. The claim is that shares in national banks should be treated the same as credits, and their owners permitted to deduct their debts from the valuation. The owners of property other than credits are not permitted to de
duct their debts from the valuation of that property.
It is also claimed that there is an unfavorable discrimination against the national bank shareholder and in favor of an unincorporated bank or banker.
At the outset it is plain that the system of taxation adopted in Ohio was not intended to be unfriendly to or to discriminate against the owners of shares in national banks, for, as observed by the state supreme court, that system was adopted long prior to the passage of the law by Congress providing for the incorporation of national banks. Under this system the owner of shares in national banks is taxed precisely like the owner of shares in incorporated state banks. Rev. Stat. Ohio, § 2762.
The main purpose of Congress in fixing limcovered by the first nine items of this section, | ture and other property not otherwise herein and allow the assessor to affix the value thereof; enumerated. From the aggregate sum of the and in such case the oath of the person making first five items above enumerated the said audithe statement shall be in that regard only that tor shall deduct the aggregate sum of the fifth, he has fully exhibited the property covered by sixth, seventh, and such portions of the eighth said nine items. items as are by law exempt from taxation, and the remainder thus obtained added to the amount of item nine, shall be entered on the duplicate of the county in the name of such bank, banker, or bankers, and taxes thereon shall be assessed and paid the same as provided for other personal property assessed and taxed in the same city, ward, or township.
Sec. 2746. Personal property of every description, moneys and credits, investments in bonds, stocks, joint-stock companies, or otherwise, shall be listed in the name of the person who was the owner thereof on the day preceding the second Monday of April, in each year; but no person shall be required to list for taxation any share or shares of the capital stock of any company, the capital stock of which is taxed in the name of such company.
UNINCORPORATED BANKS AND BANKERS.
Sec. 2758. Every company, association, or person not incorporated under any law of this state or of the United States for banking purposes, who shall keep an office or other place of business, and engage in the business of lending money, receiving money on deposit, buying and selling bullion, bills of exchange, notes, bonds, stocks or other evidence of indebtedness, with a view to profit, shall be deemed a bank, banker, or bankers, within the meaning of this chapter.
Sec. 2759. All unincorporated banks and bankers shall annually, between the first and second Mondays of May, make out and return to the auditor of the proper county, under oath of the owner or principal officer or manager thereof, a statement setting forth:
First. The average amount of notes and bills receivable, discounted or purchased in the course of business, by such unincorporated bank, banker, or bankers, and considered good and collectible.
Second. The average amount of accounts receivable.
Sec. 2759a. The said bank, banker, or bankers shall, at the same time, make statement under oath of the amount of capital paid in or employed in such banking business, together with the number of shares or proportional interest each shareholder or partner has in such association or partnership.
Sec. 2762. All the shares of the stockholders in any incorporated bank or banking association located in this state, whether now or hereafter incorporated or organized under the laws of this state or of the United States, shall be listed at their true value in money, and taxed in the city, ward, or village where such bank is located, and not elsewhere.
Sec. 2763. The real estate of any such bank or banking association shall be taxed in the place where the same may be located, the same as the real estate of individuals.
Sec. 2765. The cashier of each incorporated bank shall make out and return to the auditor of the county in which it is located, between the first and the second Monday of May, annually, a report in duplicate under oath, exhibiting in detail and under appropriate heads the resources and liabilities of such bank at the close of business on the Wednesday next preceding
Third. The average amount of cash and cash said second Monday, together with a full stateitems in possession or in transit.
Fourth. The average amount of all kinds of stocks, bonds, including United States government bonds, or evidences of indebtedness, held as an investment or in any way representing
Fifth. The amount of real estate at its assessed value.
Sixth. The average amount of all deposits. Seventh. The average amount of accounts payable, exclusive of current deposit accounts. Eighth. The average amount of United States government and other securities that are exempt from taxation.
Ninth. The true value in money of all furni
ment of the names and residences of the stockholders therein, with the number of shares held by each, and the par value of each share.
Sec. 2766. Upon receiving such report the county auditor shall fix the total value of the shares of such banks according to their true value in money, and deduct from the aggregate sum so found the value of the real estate included in the statement of resources as the same stands on the duplicate, and thereupon he shall make out and transmit to the annual state board of equalization for incorporated banks a copy of the report so made by the cashier, together with the valuation of such shares as so fixed by the auditor.
its to state taxation on investments in na- | utes therefore makes provision, in order to tional banks was to render it impossible for determine the amount to be assessed for taxthe state in levying such a tax to create and ation, for deducting the debts existing in the *fix an unequal and unfriendly competition business itself from the amount of moneyed by favoring institutions or individuals carry. capital belonging to the bank or banker and ing on a similar business and operations and employed in the business, and the remainder investments of a like character. The lan- is entered on the tax book in the name of the guage of the act of Congress is to be read in bank or banker, and taxes assessed thereon. the light of this policy. "Moneyed capital" This does not give the unincorporated bank does not mean all capital the value of which or banker the right to deduct his general is measured in terms of money; neither does debts disconnected from the business of it necessarily include all forms of invest-banking, and ont incurred therein, from the ments in which the interest of the owner is remainder above mentioned. It cannot be expressed in money. Shares of stock in rail- doubted that under this section those debts road companies, mining companies, manu- which are disconnected from the banking facturing companies, and other corporations business cannot be deducted from the aggre are represented by certificates showing that gate amount of the capital employed therethe owner is entitled to an interest expressed | in. The debts that are incurred in the acin money value in the entire capital and prop- tual conduct of the business are deducted, so erty of the corporation; but the property of that the real value of the capital that is emthe corporation which constitutes this in-ployed may be determined and the taxes asvested capital may consist mainly of real and sessed thereon. personal property, which, in the hands of individuals, none would think of calling moneyed capital; and its business may not consist in any kind of dealing in money or commercial representatives of noney. This statement is taken from Mercantile Bank v. New York, 121 U. S. 138, 155 [30: 895, 901]. That case has been cited with approval many times, especially in First National Bank of Garnett v. Ayres, 160 U. S. 660 [40: 573], and in Aberdeen Bank v. Chehalis County, 166 U. S. 440 [41: 1069].
The result seems to be that the term "moneyed capital" as used in the Federal statute does not include capital which does not come into competition with the business of national banks, and that exemptions from taxation, however large, such as deposits in savings banks or of moneys belonging to charitable institutions, which are exempted for reasons of public policy, and not as an unfriendly discrimination as against invest ments in national bank shares, cannot be regarded as forbidden by the Federal statute.
The case last cited contains a full and careful reference to most of the prior cases decided in this court upon the subject, and gives the meaning (as above stated) of the term "moneyed capital," when used in the Federal statute.
With no purpose to discriminate against the holders of shares in national banks, and with the taxation of the shareholders in the two classes of banks, state and national, precisely the same, the question is whether this system of taxation in Ohio, in its practical operation, does materially discriminate against the national-bank shareholder in the assessment upon his bank shares.
Under the Ohio law the shares in national
This system is, as nearly as may be, equivalent in its results to that employed in the case of incorporated state banks and of national banks. Under the sections of the Revised Statutes which relate to the taxation of these latter classes of banks (§ 2762, etc.) the shares are to be listed by the auditor at their true value in money, which necessarily demands the deduction of the debts of the bank, because the true value of the shares in money is necessarily reduced by an amount corresponding to the amount of such debts. In order to arrive at their true value in money the bank returns to the auditor the *amount of the liabilities as well as its re-[ sources. Thus in both incorporated and unincorporated banks the same thing is desired, and the same result of assessing the value of the capital employed in the business, after the deduction of the debts incurred in its conduct, is arrived at in cach case as nearly as is possible considering the difference in manner in which the moneyed capital is represented in unincorporated banks as compared with incorporated banks which have a capital stock divided into shares. That mathematical equality is not arrived at in the process is immaterial. It cannot be reached in any system of taxation, and it is useless and idle to attempt it. Equality, so far as the differing facts will permit, and as near as they will permit, is all that can be aimed at or reached. That measure of equality we think is reached under this system. So far as this point is concerned, it is entirely plain there is no discrimination between unincorporated banks and bankers on the one hand and holders of shares in national banks on the other.
If the value of national bank sbares is increased by reason of the franchises of the bank itself, as claimed by the plaintiff in error, while no such added value obtains in the case of unincorporated banks, there is no discrimination against bank shareholders on that account. This is simply a case where added elements of value exist in the national bank shares, which are absent in the case of unincorporated banks; but in both cases all the debts of the business itself are deducted from the capital employed before
reaching the sum which is assessed for taxation, and in neither case can the debts of the individual, simply as an individual, be deducted from the value of the capital assessed for taxation.
The court below did not hold, as erroneously suggested by counsel for plaintiff in error, that, as the state and national banks were placed on an exact equality regarding taxation, therefore there was no discrimination made against national banks and in favor of other moneyed capital in the hands of individual citizens. The state court said upon this subject that if the state and national banks were treated equally the latter were not assessed at a greater rate than the former; *that national-bank shareholders were not, in such event, illegally assessed, unless there were a clear discrimination in favor of moneyed capital other than that employed in either state or national banks. | This statement, we think, is plainly correct. The question recognized by the state court, therefore, remains whether there is any such discrimination.
The chief ground for maintaining that there is, exists in the fact that the owner of what is termed "credits" in the statute is permitted to deduct certain classes of debts from the sum of those credits, upon the remainder of which taxes are to be assessed, while the national-bank shareholder is not permitted to deduct his debts from the value of his shares upon which he is assessed for taxation.
It is claimed in substance that all credits are moneyed capital, and that they are large enough in amount, when compared with the moneyed capital invested in national banks, to become an illegal discrimination against the holders of such shares.
There is no finding of the trial court upon the subject of the total amount of credits in the state. Reference was made on the argument to the report of the auditor of the state for 1893, from which it is said to appear that the total credits, after deducting the debts allowed, were $106,000,000 or $111,000,000, the amounts differing to that extent as presented by the counsel for the different parties. The case does not show that the trial court received the report in evidence and nothing in any finding has reference in any way to that report. We do not think it is a document of which we can take judicial notice, or that we could refer to any statement or alleged fact contained therein, unless such fact were embraced in the finding of facts of the trial court upon which we
must decide this case.
However, if we were to look at this report we should then see that the total credits do not show what portion of those credits consists of moneyed capital in the hands of individuals, which in fact enters into competition for business with national banks. It is only that kind of moneyed capital which this *court, in its decisions above cited, holds is moneyed capital within the meaning of the act of Congress. 674
Indeed, there is no evidence as to what the total moneyed capital in the hands of individual citizens, and included in the term "credits," amounts to, even under the widest definition of that term.
In looking at the statutory definition of the term "credits" we find that so far from its including all legal claims and demands of every conceivable kind, except investments in bonds of the classes described in section 2730, and investments in stocks, it does not include any claim or demand for deposits which the person owning, holding in trust, or having the beneficial interest therein, is entitled to withdraw in money on demand, nor the surplus or undivided profits held by societies for savings or banks having no capital stock, nor bank notes of solvent banks in actual possession, and from the credits as defined their owner cannot deduct certain kinds of indebtedness therein mentioned. It cannot be contended that all credits, as defined in the statute, are moneyed capital within the meaning of the act of Congress. The term "credits" includes among other things, as stated in the statute, "all legal claims and demands for labor or service due or to become due to the person liable to pay taxes thereon." These claims are not in any sense of the statute moneyed capital. They include all claims for professional or clerical services, as well as for what may be termed manual labor, and their total must amount to a large sum. What proportion that total bears to the whole sum of credits we do not know, and the record contains no means of ascertaining.
It is impossible to tell from anything appearing in the record what proportion of the whole sum of credits consists of moneyed capital within the meaning of the Federal act. We know that claims for labor or serv ices do not consist of that kind of capital. We also know that there are probably large amounts of other forms of property which might enter into the class of credits as defined in the act, which would not be moneyed capital within the meaning of the act of Congress, as that meaning has been defined by this court in the cases above cited. It is thus seen that there are large and unknown
amounts of what are in the act termed cred
its, which are not moneyed capital, and that the total amount of credits which are moneyed capital, within the definition given by
this court to that term, is also unknown. That portion of credits which is not moneyed capital, as so defined, does not enter into the question, because the comparison must be made with other moneyed capital in the hands of individual citizens. We are thus wholly prevented from ascertaining what proportion the moneyed capital of individual citizens, included in the term credits (and from which some classes of debts can be deducted), bears to the amount invested in national bank shares. We are, therefore, unable to say whether there has or has not been any material discrimination such as the Fed173 U. S.
eral statute was enacted to prevent. We
As a result we find in this record no means
the judgment in this case should be affirmed, and it is so ordered.
HENRIETTA MINING & MILLING COM-
(See S. C. Reporter's ed. 221-225.) Service of summons upon foreign corpora tion-Arizona Code, §§ 348, 712, 713, as to such service.
Under Ariz. Code Civ. Proc. § 704, service of a summons upon the general manager of a foreign corporation is a sufficient service upon the corporation itself.
Sections 348, 712, and 713 of the same Code, providing specially for service upon foreign corporations, are not exclusive, and merely provide a special mode of service in case the corporation has ceased to do business in the territory, or has no agent appointed in pursuance of 348.
It is stated, however, that this specific 2. question has been otherwise decided in Whitbeck v. Mercantile National Bank of Cleveland, 127 U. S. 193 [32: 118]. If this were true, we should be guided by and follow that decision. Upon an examination of the case it is seen that the court gave chief attention to the question whether an increase in the value of the shares in national banks, made by the state board of equalization, from Submitted January 16, 1899. sixty per cent of their true value in money, as fixed by the auditor of Cuyahoga county, to sixty-five per cent as fixed by the board (other property being valued at only sixty per cent), amounted to such a discrimination in the taxation of the *shareholders of such banks as is forbidden by the Federal statute. It was held that it did.
Coming to the question of the deduction of the bona fide indebtedness of shareholders, the court assumed that under the statute of Ohio owners of all moneyed capital other than shares in a national bank were permitted to deduct their bona fide indebtedness from the value of their moneyed capital, but that no provision for a similar deduction was made in regard to the owner of shares in a national bank, and it was held that the owners of such shares were entitled to a deduction of their indebtedness from the assessed value of the shares as in the case of other moneyed capital. The point to which the court chiefly directed its attention related to the question whether a timely demand had been made for such deduction of indebtedness. It was held that it was made in time, for the reason that the court below expressly found that "the laws of Ohio make no provision for the deduction of the bona fide indebtedness of any shareholder from the shares of his stock, and provide no means by which such deduction could be secured." As a demand at an earlier period would have been useless, the court held it unnecessary. An examination of the statutes of Ohio in regard to taxation shows that debts can only be deducted from credits, and how much of credits is moneyed capital is unknown. The case is not authority adverse to the principle we now hold.
For the reasons already stated, we think
ruary 27, 1899.
N APPEAL from a judgment of the Su
preme Court of the Territory of Arizona modifying and affirming as modified the judgment of the District Court of Yavapai County, Arizona, in favor of Henry Johnson, plaintiff, and against the Henrietta Mining & Milling Company, the defendant, for work and labor done and material furnished by plaintiff for defendant, amounting to $5,748.57. Affirmed.
Statement by Mr. Justice Brown:
This was an action instituted by Johnson in the district court of Yavapai county, Arizona, to obtain a judgment against, and to establish a lien upon, the property of the Mining Company, an Illinois corporation, for work and labor done and material furnished, and to fix the priority of such lien over certain other lienholders who were also made defendants. The plaintiff, in an affidavit annexed to the complaint, made oath that "H. N. Palmer is the general manager of the said Henrietta Mining & Milling Company, and in charge of the property of the said company in the said county of Yavapai," and that said company "has no resident agent in the said county of Yavapai and territory of Arizona, as is required by law; and this affiant causes a copy of this notice of lien to be served upon the said H. N. Palmer, as the general manager of said company.'
A summons was issued, and a return made by the sheriff that he had "personally served the same on the 9th day of July, 1894, on the Henrietta Mining & Milling Company, by delivering to H. N. Palmer, superintendent and general manager of said company,
.. being the defendants named in said
summons, by delivering to each of said defendants personally, in the city of Prescott, county of Yavapai, a copy of summons, and a true copy of the complaint in the action named in said summons, attached to said summons."
Default having been made, judgment was entered against the company personally, with a further clause that plaintiff have a lien upon its property in the sum of $5,742. 57. The case was taken to the supreme court of the territory by writ of error, where the judgment was modified by striking out the lien upon the property, and in all other respects was affirmed, and a new judgment entered against the sureties upon the supersedeas bond.
Whereupon the Mining & Milling Company sued out a writ of error from this court, insisting, in its assignments of error, that "the said court below did not have jurisdiction of the person of defendant for the reason that no service had been had upon said defendant, either personal or constructive."
Messrs. William H. Barnes and Frank Asbury Johnson for appellant.
Messrs. E. M. Sandford and Robert E. Morrison for appellee.
 *Mr. Justice Brown delivered the opinion of the court:
The affidavit of the plaintiff, and the return of the sheriff, each stated that Palmer was the general manager of the company. No evidence to the contrary was introduced, and the fact must therefore be assumed upon this record.
As the judgment of the district court was modified by the supreme court, it became simply a personal judgment against the company, and the only question presented is whether the service of a summons upon the general manager of the company was, under the laws of Arizona, a sufficient service upon the company itself.
Our attention is called to several sections of the Revised Statutes of Arizona (1887), the first of which is part of the chapter entitled "Foreign Corporation" and provides: "Sec. 348. It shall be the duty of any association, company, or corporation organized or incorporated under the laws of any other state or territory ... to file with the secretary of this territory and the county recorder of the county in which such enterprise, business, pursuit, or occupation is proposed to be located, or is located, the lawful appointment of an agent, upon whom all notices and processes, including service of summons, may be served, and when so served shall be deemed taken and held to be a lawful, personal service," etc. There is no penalty provided for a failure to file such appointment, though in the next section, 349, it is declared that "every act done by it, prior to the filing thereof, shall be utterly void." Beyond this disability it is left optional with the corporation to file such appointment, and the record of this case shows that 676
none such was filed by the plaintiff in error. The second section is taken from that chapter of the Code of Civil Procedure entitled "Process and Returns:" "Sec. 704. In suits against any incorporated company or joint-stock association the summons may be served on the president, secretary, or treasurer of such company or association, or upon the local agent representing such company or association, in the county in which suit is brought, or by leaving a copy of the same at the principal office of the company during office hours," etc.
There is a further provision in the same chapter, sec. 712, that when it is made to appear by affidavit that the defendant "is a corporation incorporated under the laws of any other state or territory or foreign country, and doing business in this territory, or having property therein, but having no legally appointed or constituted agent in this ter ritory, the clerk shall issue the summons, and said sheriff shall serve the same by making publication thereof in some newspaper," etc.; and by section 713, when the residence of defendant is known, the plaintiff, his agent or attorney, shall forthwith deposit a copy of the summons and complaint in the postoffice, postage prepaid, directed to the defendant at his place of residence.
It is insisted by the plaintiff in error that the service in this case upon its manager was ineffectual to bind the corporation, and that a personal judgment under it could only be obtained by complying with section 348, and serving upon an agent appointed in pursuance of that section; and that this position holds good notwithstanding such appointment had never been made. We are of opinion, however, that sections 348, 712, and 713, providing *specially for services upon foreign corporations, were not intended to be exclusive, and were merely designed to secure a special mode of service in case the corpor ation had ceased to do business in the territory, or had no local or official agent appointed in pursuance of section 348. Not only is the language of section 348 permissive in the use of the words "may be served" upon the agent appointed under the statute, but the general language of section 704, taken in connection with the general subject of the statute, "Process and Returns," indicates that no restriction was intended to domestic corporations; and that the words "any incorporated company or joint-stock association" are as applicable to foreign as to domestic companies. No penalty is imposed upon foreign corporations for failure to file the appointment of an agent under section 348, and the only disability which such failure entails is its incompetence to enforce its rights by suit. If, as contended by the plaintiff in error, the remedy against the foreign corporation be confined to service of process upon such appointed agent, it results that, if the corporation does not choose to file such appointment, intending suitors are confined to the remedy by publi173 U. S.