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reaching the sum which is assessed for tax- Indeed, there is no evidence as to what ation, and in neither case can the debts of the total moneyed capital in the hands of the individual, simply as an individual, be individual citizens, and included in the term deducted from the value of the capital as- "credits,” amounts to, even under the widest sessed for taxation.

definition of that term. The court below did not hold, as erro- In looking at the statutory definition of the neously suggested by counsel for plaintiff in term “credits” we find that so far from its error, that, as the state and national banks including all legal claims and demands of were placed on an exact equality regarding every conceivable kind, except investments taxation, therefore there was no discrimina in bonds of the classes described in section tion made against national banks and in fa- 2730, and investments in stocks, it does not vor of other moneyed capital in the hands of include any claim or demand for deposits individual citizens. The state court said which the person owning, holding in trust, upon this subject that if the state and na- or having the beneficial interest therein, is tional banks were treated equally the latter entitled to withdraw in money on demand,

were not assessed at a greater rate than the nor the surplus or undivided profits held by [217]former; *that national-bank shareholders societies for savings or banks having no capi.

were not, in such event, illegally assessed, tal stock, nor bank notes of solvent banks uriless there were a clear discrimination in in actual possession, and from the credits as favor of moneyed capital other than that defined their owner cannot deduct certain employed in either state or national banks. kinds of indebtedness therein mentioned. It This statement, we think, is plainly correct. cannot be contended that all credits, as de

The question recognized by the state fined in the statute, are moneyed capital court, therefore, remains whether there is within the meaning of the act of Congress. any such discrimination.

The term "credits" includes among other The chief ground for maintaining that things, as stated in the statute, "all legal there is, exists in the fact that the owner of claims and demands

for labor or what is termed "credits” in the statute is service due or to become due to the person permitted to deduct certain classes of debts liable to pay taxes thereon.” These claims from the sum of those credits, upon the re- are not in any sense of the statute moneyed mainder of which taxes are to he assessed, capital. They include all claims for prowhile the national-bank shareholder is not fessional or clerical services, as well as for permitted to deduct his debts from the value what may be termed manual labor, and their of his shares upon which he is assessed for total must amount to a large sum. What taxation.

proportion that total bears to the whole sum It is claimed in substance that all credits of credits we do not know, and the record are moneyed capital, and that they are large contains no means of ascertaining. enough in amount, when compared with the It is impossible to tell from anything apmoneyed capital invested in national banks, pearing in the record what proportion of to become an illegal discrimination against the whole sum of credits consists of moneyed the holders of such shares.

capital within the meaning of the Federal There is no finding of the trial court upon act. We know that claims for labor or servthe subject of the total amount of credits in ices do not consist of that kind of capital. the state. Reference was made on the argu. We also know that there are probably large ment to the report of the auditor of the state amounts of other forms of property which for 1893, from which it is said to appear might enter into the class of credits as de that the total credits, after deducting the fined in the act, which would not be moneyed debts allowed, were $106,000,000 or $111, capital within the meaning of the act of 000,000, the amounts differing to that ex: Congress, as that meaning has been defined

. (219) ferent parties. The case does not show that the thus seen that there are large and unknown trial court received the report

in evidence and amounts of what are in the act termed crednothing in any finding has reference in any way to that report. We do not think it its, which are not moneyed capital, and that is a document of which we can take judicial the total amount of credits which are monnotice, or that we could refer to any state- eyed capital, within the definition given by ment or alleged fact contained therein, un

this court to that term, is also unknown. less such fact were embraced in the finding That portion of credits which is not moneyed of facts of the trial court upon which we capital, as so defined, does not enter into the nust decide this case.

question, because the comparison must be However, if we were to look at this report made with other moneyed capital in the we should then see that the total credits do hands of individual citizens. We are thus not show what portion of those credits con- wholly prevented from a certaining what sists of moneyed capital in the hands of in- proportion the moneyed capital of individual dividuals, which in fact enters into competi- citizens, included in the term credits (and tion for business with national banks. It is from which some classes of debts can be de

only that kind of moneyed capital which this, ducted), bears to the amount invested in na. (218]*court, in its decisions above cited, holds tional bank shares. We are, therefore, un

is moneyed capital within the meaning of the able to say whether there has or has not been act of Congress.

any material discrimination such as the Fed. 674

173 U. S.

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V.

eral statute was enacted to prevent. We the judgment in this case should be affirmed,
cannot see upon these facts any substantial and it is so ordered.
difference between this case and that of First
Nat. Bank v. Ayres, 160 U. S. 660 [40: 573),
and Aberdeen Bank [First Nat. Bank] v. HENRIETTA MINING & MILLING COM-[221]
Chehalis County, 166 U. S. 440 [41: 1069),

PANY, Appt.,
and Bank of Commerce v. Seattle, 166 U. S.
463 [41: 1079].

HENRY JOHNSON.
As a result we find in this record no means
of ascertaining whether there is any unfavor.

(See 8. C. Reporter's ed. 221-225.)
able discrimination against the sharehold-
ers of national banks in the taxation of their service of summons upon foreign corpora-
shares, and in favor of other moneyed capi-

tion-Arizona Code, 88 348, 712, 713, as tal in the hands of individual citizens. There

to such service.
is nothing upon the face of these statutes
which shows such discrimination, and there- 1.

Under Ariz. Code Civ. Proc. $ 704, service of
fore it would seem that the plaintiff in error a summons upon the general manager of a
has failed to make out a case for the inter- foreign corporation is a sufficient service upon
vention of the court.

the corporation itself.
It is stated, however, that this specific 2. Sections 348, 712, and 713 of the same Code,
question has been otherwise decided in Whit- providing specially for service upon foreign
beck v. Mercantile National Bank of Cleve- corporations, are not exclusive, and merely
land, 127 U. S. 193 [32: 118]. If this were

provide a special mode of service in case the
true, we should be guided by and follow

corporation has ceased to do business in the

territory, or has no agent appointed in pur.
that decision. Upon an examination of the

suance of $ 348.
case it is seen that the court gave chief at-
tention to the question whether an increase

(No. 139.)
in the value of the shares in national bånks,
made by the state board of equalization, from Submitted January 16, 1899. Decided .Feb-
sixty per cent of their true value in money,

ruary 27, 1899.
as fixed by the auditor of Cuyahoga county,
to sixty-five per cent as fixed by the board

ON

N APPEAL from a judgment of the Su(other property being valued at only sixty preme Court of the Territory of Arizona

per cent), amounted to such a discrimina modifying and affirming as modified the (220]tion in the taxation of the *shareholders of judgment of the District Court of Yavapai

such banks as is forbidden by the Federal County, Arizona, in favor of Henry Johnson,
statute. It was held that it did.

plaintiff, and against the Henrietta Mining
Coming to the question of the deduction of & Milling Company, the defendant, for work
the bona fide indebtedness of shareholders, and labor done and material furnished by
the court assumed that under the statute of plaintiff for defendant, amounting to $5,-
Ohio owners of all moneyed capital 'other 748.57. Affirmed.
than shares in a national bank were permit-
ted to deduct their bona fide indebtedness Statement by Mr. Justice Brown:
from the value of their moneyed capital, but This was an action instituted by Johnson
that no provision for a similar deduction in the district court of Yavapai county, Ariz-
was made in regard to the owner of shares ona, to obtain a judgment against, and to
in a national bank, and it was held that the establish a lien upon, the property of the
owners of such shares were entitled to a de- Mining Company, an Illinois corporation, for
duction of their indebtedness from the as- work and labor done and material furnished,
sessed value of the shares as in the case of and to fix the priority of such lien over cer-
other moneyed capital. The point to which tain other lienholders who were also made
the court chiefly directed its attention re- defendants. The plaintiff, in an affidavit
lated to the question whether a timely de- annexed to the complaint, made oath that
mand had been made for such deduction of “H. N. Palmer is the general manager of the
indebtedness. It was held that it was made said Henrietta Mining & Milling Company,
in time, for the reason that the court below and in charge of the property of the said
expressly found that “the laws of Ohio make company in the said county of Yavapai,” and
no provision for the deduction of the bona that said company "has no resident agent in
fide indebtedness of any shareholder from the the said county of Yavapai and territory of
shares of his stock, and provide no means by Arizona, as is required by law; and this af-
which such deduction could be secured.” As fiant causes a copy of this notice of lien to be
a demand at an earlier period would have served upon the said H. N. Palmer, as the
been useless, the court held it unnecessary. general manager of said company'

An examination of the statutes of Ohio in A summons was issued, and a return made regard to taxation shows that debts can only by the sheriff that he had “personally served be deducted from credits, and how much of the same on the 9th day of July, 1894, on credits is moneyed capital is unknown. The the Henrietta Mining & Milling Company, by case is not authority adverse to the princi. delivering to H. N. Palmer, superintendent ple we now hold.

and general manager of said company, For the reasons already stated, we think being the defendants named in said

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summons, by delivering to each cf said de- none such was filed by the plaintiff in error. fendants personally, in the city of Prescott, The second section is taken from that county of Yavapai, a copy of summons, and chapter of the Code of Civil Procedure entia true copy of the complaint in the action tled "Process and Returns:" "Sec. 704. named in said summons, attached to said In suits against any incorporated company summons."

or joint-stock association the summons may Default having been made, judgment was be served on the president, secretary, or entered against the company personally, with treasurer of such company or association, or a further clause that plaintiff have a lien upon the local agent representing such com

upon its property in the sum of $5,748. 57. pany or association, in the county in which [222]The case was taken to the supreme court suit is brought, or by leaving a copy of the

of the territory by writ of error, where the same at the principal office of the company
judgment was modified by striking out the during office hours, etc.
lien upon the property, and in all otber re- There is a further provision in the same
spects was affirmed, and a new judgment en chapter, sec. 712, that when it is nade to ap-
tered against the sureties upon the super pear by affidavit that the defendant "is a cor.
sedeas bond.

poration incorporated under the laws of any Whereupon the Mining & Milling Company other state or territory or foreign country, sued out a writ of error from this court, in- and doing business in this territory, or have sisting, in its assignments of error, that "the ing property therein, but having no legally said court below did not have jurisdiction of appointed or constituted agent in this terthe person of defendant for the reason that ritory,

the clerk shall issue the no service had been had upon said defendant, summons,

and said sheriff shall either personal or constructive."

serve the same by making publication there.

of in some newspaper,” etc.; and by section Messrs. William H. Barnes and Frank 713, when the residence of defendant is Asbury Johnson for appellant.

known, the plaintiff, his agent or attorney, Messrs. E. M. Sandford and Robert E. shall forth with deposit a copy of the sum. Morrison for appellee.

mons and complaint in the postolice, postage

prepaid, directed to the defendant at his [222] *Mr. Justice Brown delivered the opinion place of residence. of the court:

It is insisted by the plaintiff in error that The affidavit of the plaintiff, and the re- the service in this case upon its manager turn of the sheriff, each stated that Palmer was ineffectual to bind the corporation, and was the general manager of the company that a personal judgment under it could No evidence to the contrary was introduced, only be obtained by complying with section and the fact must therefore be assumed upon 348, and serving upon an agent appointed in this record.

pursuance of that section; and that this poAs the judgment of the district court was sition holds good notwithstanding such apmodified by the supreme court, it became sim- pointment had never been made. We are of ply a personal judgment against the com- opinion, however, that sections 345, 712, and pany, and the only question presented is 713, providing *specially for services upon[224] whether the service of a summons upon the foreign corporations, were not intended to be general manager of the company was, under exclusive, and were merely designed to secure the laws of Arizona, a sufficient service upon a special mode of service in case the corporthe company itself.

ation had ceased to do business in the terri. Our attention is called to several sections tory, or had no local or official agent apof the Revised Statutes of Arizona (1887), pointed in pursuance of section 348. Not the first of which is part of the chapter en- only is the language of section 348 permistitled "Foreign Corporation” and provides: sive in the use of the words “may be served” “Sec. 348. It shall be the duty of any asso- upon the agent appointed under the statute, ciation, company, or corporation organized but the general language of section 704, tak or incorporated under the laws of any other en in connection with the general subject of state or territory

to file with the the statute, “Process and Returns," indisecretary of this territory and the county re- cates that no restriction was intended to do. corder of the county in which such enter mestic corporations; and that the words prise, business, pursuit, or occupation is pro: “any incorporated company or joint-stock

posed to be located, or is located, the lawful association" are as applicable to foreign as 1223]appointment of an agent, upon *whom all no- to domestic companies. No penalty is im

tices and processes, including service of sum- posed upon foreign corporations for failure mons, may be served, and when so served to file the appointment of an agent under shall be deemed taken and held to be a lawful, section 348, and the only disability which personal service,” etc. There is no penalty such failure entails is its incompetence to provided for a failure to file such appoint. enforce its rights by suit. If, as contended ment, though in the next section, 349, it is by the plaintiff in error, the remedy against declared that “every act done by it,' prior the foreign corporation be confined to serve to the filing thereof, shall be utterly void.” ice of process upon such appointed agent, it Beyond this disability it is left optional results that, if the corporation does not with the corporation to file such appoint- choose to file such appointment, intending ment, and the record of this case shows that suitors are confined to the remedy by publi676

173 U. S.

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V.

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STATE OF OHIO, A ppt.,

"3. Said eating house is used by said J.

B. Thomas for serving and furnishing to the
J. B. THOMAS.

inmates of said Central Branch of the Na

tional Home for Disabled Volunteer Soldiers (See S. C. Reporter's ed. 276–285.) their daily #food or rations, and is the only[278)

place so provided at said National Home, and Governor of soldiers' home not subject to is known as the mess room of the said Cen. state law as to use of oleomargarine. tral Branch of the National Home for Dis

abled Volunteer Soldiers, situate on the A governor of a soldiers' home which is under grounds purchased, held and used by tho

the sole jurisdiction of Congress is not sub- United States therefor, and the acts comject to the state law concerning the use of plained of herein consisted in causing oleooleomargarine, when he furnishes that article to the inmates of the home as part of the margarine to be served and furnished, on the rations furnished for them under appropria. 2d day of March, 1897, as food and as part of tions made by Congress therefor.

the rations furnished to the inmates thereof,

under appropriations made by the Congress (No. 353.]

of the United States for the support of said

inmates; and that no placard in size not less Argued and submitted January 10, 1899. than 10 x 14 inches, having printed thereon Decided February 27, 1899.

in black letters not less in size than 1%

inches square, the words 'oleomargarine A PPEAL from acouorder Appeals for the salinando used here,' was displayed in said

States Circuit of eating . Sixth Circuit affirming the order of the Cir- “4. The affidavit in the cause is made in cuit Court of the United States for the conformity with an act of the general assem. Southern District of Ohio, Western Division, bly of the state of Ohio (Ohio Laws, vol. 92, discharging the appellee, J. B. Thomas, govo page 23), passed in 1895, and entitled 'An ernor of the soldiers' home in the county of Act to Amend Section 3 of an Act Entitled Montgomery, Ohio, from the custody of a “An Act to Prevent Fraud and Deception in constable under a mittimus from the justice the Manufacture and Sale of Oleomargarine of the peace before whom he was tried and by and Promote Public Health in the State of whom he was convicted and sentenced to pay Ohio," s passed May 16, 1894.” a fine of $50 and to be imprisoned until such Section 3 of the act, as so amended, reads fine was paid, for a violation of the Ohio act as follows: of 1895 (92 Ohio State Laws, 23) in relation “Sec. 3. Every proprietor, keeper, manato the use of oleomargarine. Affirmed. ger, or person in charge of any hotel, boat,

See same case below, 82 Fed. Rep. 304, and railroad car, boarding house, restaurant, eate 58 V. S. App. 431, 87 Fed. Rep. 453.

ing house, lunch counter, or lunch room, who

therein sells, uses, serves, furnishes, or disStatement by Mr. Justice Peckham: poses of or uses in cooking, any oleomarga77] In this case complaint was made by af- rine, shall display and keep a white placard

fidavit by the dairy commissioner of Ohio in a conspicuous place, where the same may against the appellee, alleging that on March be easily seen and read, in the dining room, 2, 1897, he violated the act of the legisla- eating house, restaurant, lunch room, or ture of the state of Ohio, passed in 1895 (92 place where such substance is furnished, Ohio State Laws, 23), in relation to the use served, sold, or disposed of, which placard of oleomargarine. Appellee was arrested shall be in size not less than ten by fourteen and brought before a justice of the peace, and inches, upon which shall be printed in black declined to plead to the charge on the ground letters, not less in size than one and a half that the act complained of in the affidavit inches square, the words 'oleomargarine sold of the complainant was performed by him as and used here,' and said card shall not con. governor of the soldiers' home, located in the tain any other words than the ones above county of Montgomery and state of Ohio, described ; and such proprietor, keeper, manand what he did was done by the authority ager, or person in charge shall not sell, serve, of the board of managers of the home. He or dispose of such substance as or for but therefore moved to dismiss the complaint for ter, when butter is asked for or purported to want of jurisdiction in_the magistrate. be furnished or served.” This motion was denied. He then consented In addition to the above statement, referto be tried without a jury upon the follow-ence was made to *the following acts of Con [279] ing agreed statement of facts:

gress providing for the creation and govern “1. That on the 2d day of March, 1897, ment of the National Homes for Disabled Joseph E. Blackburn was and now is the Volunteer Soldiers, viz.: Act of March 3, food and dairy commissioner of the state of 1865, chap. 91 (13 Stat, at L. 509); act of Ohio.

March 21, 1866, chap. 21 (14 Stat. at L. 10); "2. That on the 2d day of March, 1897, J. act of March 3, 1875, chap. 129 (18 Stat. at B. Thomas was and now is the duly chosen L. 343, at 359). By the last-cited statute, and acting governor of the Central Branch of on page 359, it is made the duty of the manthe National Home for Disabled Volunteer agers of the home, on or before the first day Soldiers, located in the county of Mont- of August in each year, "to furnish to the gomery, state of Ohio, and as said governor Secretary of War estimates, in detail, for was in charge of the eating house at the said the support of said home for the fiscal year Central Branch of the National Home for commencing on the first day of July there Disabled Volunteer Soldiers.

after; and the Secretary of War shall an

Injurles is governed by the laws of that state, 1, p. 1491. That section was construed in rather than by the law of the state in which Ohio & Penn. Coal Co. v. Smith, Admr. 53 the injuries occurred.

Ohio St. 313, which was an action for per(No. 129.)

sonal injuries caused by the negligence of a

corporation and its agents. The supreme Submitted January 12, 1899. Decided Feb. court of Ohio said: "The action was a pend. ruary 20, 1899.

ing one at the time of the death of the plain

tiff. It is not within any of the enumerated States Circuit Court of Appeals for the fore properly revived and prosecuted to judg. Sixth Circuit of a question of law for the ment in the name of the administrator of decision of this court in an action brought the deceased plaintiff.” by John A. Hervey against the Baltimore &

The Revised Statutes of Indiana, in which Ohio Railroad Company, in the Common state the injury was received, provide that Pleas Court of Hancock County, Ohio, to re “no action shall abate by the death or dis-[228] cover damages for personal injuries caused ability of a party, or by the transfer of any by the negligence of the railroad company, interest therein, if the cause of action surwhich action was removed into the Circuit vive or continue" (§ 271); also, that "a Court of the United States for the Northern cause of action arising out of an injury to District of Ohio. After such removal plain the person dies with the person of either tiff died, and the action was revived in the party, except in cases in which an action is name of his administrator appointed in Ohio. given for an injury causing the death of any Question answered in the negative.

person, and actions for seduction, false im. Messrs. Hugh L. Bond, Jr., and J. A. prisonment and malicious prosecution." (§ Collins for plaintiff in error.

282). No counsel for defendant in error.

By section 955 of the Revised Statutes of

the United States, brought forward from the (226). "Mr. Justice Harlan delivered the opin- judiciary act of September 24th, 1789 (1 ion of the court:

Stat. at L. 90, chap. 20, § 31), it is proThis case is before us upon a question of vided that “when either of the parties, law certified by the judges of the United whether plaintiff or petitioner or defendant, States circuit court of appeals for the sixth in any suit in any court of the United States, circuit unuer the sixth section of the act dies before final judgment, the executor or of March 3d 1891, chap. 517 (26 Stat. at L. , administrator of 'such deceased party may, 826).

in case the cause of action survives by law, [227] *It appears from the statement accompany: prosecute or defend any such suit to final

ing the certificate, that on the 18th day of judgment.” October, 1891, John A. Hervey, a citizen of The question upon which the court below Ohio residing in Hancock county in that desires the instruction of this court is this: state, was a passenger on a train of the Bal

“Does an action pending in the circuit timore & Ohio Railroad Company between court of the United States sitting in Ohio, Chicago, Illinois, and Fostoria, Ohio.. While brought by the injured person as plaintiff upon the train as passenger he was injured to recover damages for injuries sustained by at Albion, Indiana, in a collision caused by the negligence of the defendant in Indiana, the negligence of the ra road company. He finally abate upon the death of the plaintiff brought suit in the common pleas court of in view of the fact that, had no suit been Hancock county, Ohio, to recover damages brought at all, the cause of action would for the personal injuries he had thus re- have abated both in Indiana and Ohio, and ceived.

that, even if suit had been brought in In. Upon the petition of the railroad company diana, the action would have abated in that the suit was removed into the circuit court state?" of the United States for the northern dis- If the case had not been removed to the trict of Ohio upon the ground of diverse circuit court of the United States, it is clear citizenship. After such removal Hervey that under the statutes of Ohio as interpretdied, and, against the objection of the rail. ed by the highest court of that state the acroad company, the action was revived in the tion might have been revived in the state name of the administrator of the deceased court in the name of the personal represenplaintiff, appointed by the proper court in tative of Hervey, and proceeded to final judg. Ohio.

ment. We think that the right to revive atAt the time of Hervey's death the com- tached under the local law when Hervey mon-law rule as to the abatement of causes brought his action in the state court. It of action for personal injuries prevailed in was a right of substantial value, and became Ohio. But by section 5144 of the Revised inseparably connected with the cause of acStatutes of that state, then in force, it was tion so far as the laws of Ohio were conprovided that, "except as otherwise provid. cerned. Was it lost or destroyed when, uped, no action or proceeding pending in any on the petition of the railway company, the court shall abate by the death of either or case was removed for trial into the circuit both of the parties thereto, except an action court of the United States? Was it not, for libel, slander, malicious prosecution, as- rather, a right that inhered in the action, sault, or assault and battery, for a nuisance, and *accompanied it when in the lifetime of[229) or against a justice of the peace for miscon- Hervey the Federal court acquired jurisdic duct in office, which shall abate by the death tion of the parties and the subject-matter! of either party.” Rev. Stat. Ohio 1890, vr!. This last question must receive an affirma

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