It will not be necessary to recite the provisions of the statute and ordinance, beyond saying that, taken in connection with another act of the General Assembly, approved March 17, 1915 (Acts Va. 1915, c. 117, p. 160), they authorized the imposition for the year 1915 upon bank stocks, state and national, of a tax for state purposes at the rate of 35 cents and a tax for city purposes at the rate of $1.40 a total of $1.75-upon the $100 of valuation, while upon intangible personal property in general, including bonds, notes, and other evidences of indebtedness, the state rate was 65 cents and the city rate 30 cents, an aggregate of 95 cents, upon each $100 of valuation.

*638

that assessed upon other moneyed capital in the hands of individual citizens of such state, there was an express proviso that the tax should not exceed the rate imposed upon the shares of state banks. But this was modified by Act of February 10, 1868, c. 7, 15 Stat. 34 (Comp. St. § 9784), in a manner which, as was pointed out in Boyer v. Boyer, 113 U. S. 689, 691, 692, 5 Sup. Ct. 706, 28 L. Ed. 1089, precluded the possibility of an interpretation permitting the states, while imposing the same taxation upon national bank shares as upon shares in state banks, to discriminate against national bank shares in favor of moneyed capital not invested in state bank stock. "At any rate," said the court, "the The bank's petition alleged, and the evi- Acts of Congress do not now permit any such dence showed without dispute, that in the discrimination." In the amended form the provision was carried into the Revised Statcity of Richmond, in 1915, *city and state tax-utes as section 5219, which prescribes that es at the rates first mentioned were imposed state taxation of shares in the national banks upon national bank stocks (including that "shall not be at a greater rate than is asof plaintiff in error) to the aggregate value sessed upon other moneyed capital in the of more than $8,000,000, and stocks of state hands of individual citizens of such state." banks and trust companies to the value of By repeated decisions of this court, deal$6,000,000 and upwards, while taxes at the ing with the restriction here imposed, it has lower aggregate rate of 95 cents per $100 become established that while the words city tax, 30 cents; state tax, 65 cents-were "moneyed capital in the hands of individual imposed for the same year upon bonds, notes, citizens" do not include shares of stock in and other evidences of indebtedness aggre- corporations that do not enter into compegating $6,250,000. It is to be inferred that a tition with the national banks, they do insubstantial part of this aggregate was in the clude something besides shares in banking hands of individual taxpayers; the precise corporations and others that enter into direct amount does not appear. It also was shown competition with those banks. They include by evidence without dispute that moneyed not only moneys invested in private bankcapital in the hands of individuals invested ing, properly so called, but investments of inin bonds, notes, and other evidences of individuals in securities that represent money debtedness comes into competition with the national banks in the loan market.

[1] Neither of the state courts passed upon this evidence or made findings of fact thereon, doubtless because, under their respective views of the applicable law, the facts referred to were immaterial. But this omission does not relieve us of the duty of examining the evidence for the purpose of determining what facts reasonably might be, and presumably would be, found therefrom by the state court, if plaintiff in error's contention upon the question of federal law should be sustained, and the facts thereby shown to be material. Carlson v. Curtiss, 234 U. S. 103, 106, 34 Sup. Ct. 717, 58 L. Ed. 1237.

[2] The Supreme Court of Appeals entertained the view that the purpose of section 5219, Rev. Stat., was confined to the prevention of discrimination by the states in favor of state banking associations as against national banking associations, and that since none such is shown here there was no repugnance to the federal statute. This, however, is too narrow a view of section 5219. It traces its origin to section 41 of the Act of June 3, 1864, c. 106, 13 Stat. 99, 111, 112, in which, besides the restriction that state taxation of the shares of national banking associ*639

at interest and other evidences of indebtedness such as normally enter into the business of banking. In Evansville Bank v. Britton, 105 U. S. 322, 324, 26 L. Ed. 1053, the court said:

"The act of Congress does not make the tax on personal property the measure of the tax on bank shares in the state, but the tax on moneyed capital in the hands of the individual citizens. Credits, money loaned at interest, and demands against persons or corporations

*640

*are more purely representative of moneyed
capital than personal property, so far as they
much personal property exempt from taxation
can be said to differ. Undoubtedly there may be
without giving bank shares a right to similar
exemption, because personal property is not
necessarily moneyed capital. But the rights,
credits, demands, and money at interest men-
tioned in the Indiana statute, from which bona
fide debts may be deducted, all mean moneyed
capital invested in that way.
of opinion that the taxation of bank shares by
shareholder to deduct from their assessed value
the Indiana statute, without permitting the

We are

the amount of his bona fide indebtedness, as in the case of other investments of moneyed capital, is a discrimination forbidden by the act of Congress."

And in Mercantile Bank v. New York, 121 ations should not be at a *greater rate than U. S. 138, 7 Sup. Ct. 826, 30 L. Ed. 895, the

(41 Sup.Ct.)

court speaking by Mr. Justice Matthews, I pointed out that the rule of construction thus after reviewing previous decisions and point-laid down had since been consistently ading out (121 U. S. 154, 7 Sup. Ct. 826, 30 L. hered to. No decision of this court to which Ed. 895) the policy and purpose of the act as our attention is called has qualified that rule, the key to its proper interpretation, proceed- or construed section 5219 as leaving out of ed to declare (121 U. S. 157, 7 Sup. Ct. 836, consideration the rate of state taxation im30 L. Ed. 895): posed upon moneyed capital in the hands of individual citizens invested in loans or either securities for the payment of money, for permanent or temporary purposes, where such moneyed capital comes into competition with that of the national banks. Thus, in Bank of Commerce v. Seattle, 166 U. S. 463, 464, 17 Sup. Ct. 996, 41 L. Ed. 1079, the precise ground of decision was the want of a showing that "the moneyed capital left unassessed was, as to any material portion thereof, moneyed capital coming into competition with that of national banks." To the same effect First National Bank of Wellington v. Chapman, 173 U. S. 205, 219, 19 Sup. Ct. 407, 43 L. Ed. 669. In the present case, there is a clear showing of such competition, relatively material in amount, and it follows that, upon the undisputed facts, the ordinance and statute under which the stock of plaintiff in error was assessed, as construed and applied, exceeded the limitation prescribed by section 5219, Rev. Stat., and hence that the tax is invalid.

"The terms of the act of Congress, therefore, include shares of stock or other interests owned by individuals in all enterprises in which the capital employed in carrying on its business is money, where the object of the business is the making of profit by its use as money. The moneyed capital thus employed is invested for that purpose in securities by way of loan, discount, or otherwise, which are from time to time, according to the rules of the business, reduced again to money and reinvested. It includes money in the hands of individuals employed in a similar way, invested in loans, or in securities for the payment of money, either as an investment of a permanent character, or temporarily with a view to sale or repayment and reinvestment. In this way the moneyed capital in the hands of individuals is distinguished from what is known generally as personal property."

Proceeding then to quote the passage we have cited from Evansville Bank v. Britton,

supra.

641

[3] *In Amoskeag Savings Bank v. Purdy, 231 U. S. 373, 390, 391, 34 Sup. Ct. 114, 58 L. Ed. 274, the above-mentioned declaration of the court in Mercantile Bank v. New York, 121 U. S. 138, 157, 7 Sup. Ct. 826, 30 L. Ed. 895, including the citation from Evansville Bank v. Britton, was repeated, and it was

Application for writ of certiorari denied. Judgment reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Mr. Justice BRANDEIS dissents.

S. 602, 41 Sup. Ct. 539, 65 L. Ed. Mr. S. to desist from further entertaining jurisdicP. Freeling, of Oklahoma City, Okl., for the tion of an action commenced by the Casa Oil State of Oklahoma. Messrs. C. W. Taylor, of Company against the receiver. Austin, Tex., and Orville Bullington and A. H. Carrigan, both of Wichita Falls, Tex., for the State of Texas. On application of A. E. Pearson and others, claimants of certain lands. Order granted authorizing the receiver to sink a well for oil and gas upon said lands.

(256 U. 8. 602)

No. 23, original. The STATE OF OKLAHOMA, complainant, v. The STATE OF TEXAS, defendant; The United States of America, intervener. June 1, 1921. See, also, 256 U. S. 602, 41 Sup. Ct. 539, 65 L. Ed. On motion of Luther Eoff, claiming to be owner of an oil and gas lease on a certain tract of land. Order granted authorizing the receiver to sink a well for oil and gas upon said land.

(256 U. S. 602)

No. 23, original. The STATE OF OKLAHOMA, complainant, v. The STATE OF TEXAS, defendant; The United States of America, intervener. June 1, 1921. See, also, 256 U. S. 602, 41 Sup. Ct. 539, 65 L. Ed. -. On motion of J. R. Armstrong and others. Order appointing Frederick S. Tyler, Esq., special master to hear and report on the claims upon a certain fund in the hands of the receiver.

(256 U. S. 602)

(256 U. S. 602) HOMA, complainant, v. The STATE OF TEXNo. 23, original. The STATE OF OKLAAS, defendant; The United States of America, intervener. June 1, 1921. See, also, 256 U. S. 602, 41 Sup. Ct. 539, 65 L. Ed. — Order authorizing receiver to reimburse certain operators or drillers of wells their actual cost of such work.

(256 U. S. 602)

No. 23, original. The STATE OF OKLAHOMA, complainant, v. The STATE OF TEXAS, defendant; The United States of America, S. 602, 41 Sup. Ct. 539, 65 L. Ed. intervener. June 1, 1921. See, also, 256 U. Order appointing Frederick S. Tyler, Esq., commissioner, to take and report the evidence of the parties as to what constitutes the south bank of Red River, as to where along that bank the true boundary line is between the State of Oklahoma and the State of Texas and as to the proper mode of locating the same upon the ground.

(256 U. S. 602)

No. 23, original. The STATE OF OKLAHOMA, complainant, v. The STATE OF TEXAS, defendant; The United States of America, intervener. June 1, 1921. See, also, 256 U. S. 602, 41 Sup. Ct. 539, 65 L. Ed. Order di

No. 23, original. The STATE OF OKLA-recting that no petition in intervention be filed HOMA, complainant, v. The STATE OF TEX- hereafter except upon special leave of the AS, defendant; The United States of America, Court. intervener. June 1, 1921. See, also, 256 U. S. 602, 41 Sup. Ct. 539, 65 L. Ed. Upon considering the fifth report of the receiver. Order made instructing receiver as to development work, as to advertising for claims, etc.

(256 U. S. 602)

(256 U. S. 684)

Garwood, of Houston, Tex., for plaintiff in

error.

No. 288. The HOUSTON & TEXAS CENTRAL RAILROAD COMPANY, plaintiff in error, v. The CITY OF ENNIS et al. June 1, 1921. In error to the Court of Civil Appeals, Fifth Supreme Judicial District, State of Texas. For opinion below, see 201 S. W. 256. No. 23, original. The STATE OF OKLA- Messrs. Jesse Andrews, of Kansas City, Mo., HOMA, complainant, v. The STATE OF TEX-J. L. Gammon, of Waxahachie, Tex., and H. M. AS, defendant; The United States of America, intervener. June 1, 1921. See, also, 256 U. S. 602, 41 Sup. Ct. 539, 65 L. Ed. Order appointing Frederick S. Tyler, Esq., commissioner, to take evidence of the parties respecting special issues joined upon the intervening petitions of E. Everitt Rowell, A. E. Pearson and others, the Burk Divide Oil Company, Consolidated, and the Mellish Consolidated Placer Mining Association, and the special issues raised by the State of Oklahoma as owner of certain school sections; and to report the evidence to the Court without findings or conclusions.

(256 U. 8. 602)

No. 23, original. The STATE OF OKLAHOMA, complainant, v. The STATE OF TEXAS, defendant; The United States of America, intervener. June 1, 1921. See, also, 256 U. S. 602, 41 Sup. Ct. 539, 65 L. Ed. - On consideration of the fifth report of the receiver. Order made directing the judge of the United States District Court for the Northern District of Texas to show cause why a writ of prohibition should not be issued commanding him

diction, upon the authority of section 237, JuPER CURIAM. Dismissed for want of jurisdicial Code (Act March 3, 1911, c. 231, 36 Stat. 1136) as amended by the act of September 6, 1916, c. 448, § 2 (39 Stat. 726 [Comp. St. § 1214]). See writ of certiorari denied (252 U. S. 583, 40 Sup. Ct. 393, 64 L. Ed. 728).

No., original. Ex parte In the matter of the STATE OF NEW YORK. Edward S. WALSH, Superintendent, etc., et al., petitioners. Nov. 22, 1920. See, also, 256 U. S. 490, 41 Sup. Ct. 588, 65 L. Ed. - Motion for leave to file petition for a writ of prohibition and/or a writ of mandamus herein granted, and rule to show cause awarded returnable Monday, December 13 next.

(256 U. S. 685)

No. 318. The DWELLING BUILDING & LOAN ASSOCIATION et al., appellants, v. Winfield S. MacHENRY, Trustee in Bankruptcy. June 1, 1921. Appeal from the Unit

(41 Sup.Ct.)

ed States Circuit Court of Appeals for the
Third Circuit. For opinion below, see 263
Fed. 702. Mr. Joseph Gilfillan, of Philadelphia,
Pa., for appellants.

PER CURIAM. Dismissed for want of jurisdiction, upon the authority of the act of January 28, 1915, c. 22, § 4, as amended by the act of September 6, 1916, c. 448, § 3 (39 Stat. 727 [Comp. St. 1120a]).

(256 U. 8. 701)

No. 893. Jacques ROUSSO, petitioner, v. Harry SOLOMON. June 1, 1921. For opinion below, see 271 Fed. 799. Mr. Joshua R. H.

Potts, of Washington, D. C., for petitioner. Mr. William F. Hall, of Washington, D. C., for respondent. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied.

No. 365. Rensselaer L. CURTIS, Receiver, etc., appellant, v. John J. CONNLY et al. June 1, 1921. For opinion below, see 264 Fed. 650. Mr. Edward F. McClennen, of Boston, Mass., for appellant. Mr. Arthur M. Allen, of Providence, R. I., for respondents. Death of Arthur W. Dennis, one of the appellees herein, suggested and motion for an order of publication granted, on motion of Mr. Lucien H. Boggs for the appellant.

No. 897. Cuno H. RUDOLPH et al., Commissioners, etc., et al., petitioners, v. Mollie SCHWARTZ. June 1, 1921. For opinion beNo. 369. AMERICAN COLUMN & LUM- low, see Schwartz v. Brownlow, 270 Fed. 1019. BER COMPANY et al., appellants, v. The Mr. F. H. Stephens, of Washington, D. C., for UNITED STATES of America. June 1, 1921. petitioners. Mr. W. Gwynn Gardiner, of WashSee, also, 40 Sup. Ct. 588. Mr. L. C. Boyle, of ington, D. C., for respondent. Petition for a Washington, D. C., for appellants. The Attor-writ of certiorari to the Court of Appeals of ney General, for the United States. Motion for the District of Columbia denied. stay of part of injunction denied.

No. 451. SANTA FÉ PACIFIC RAILROAD COMPANY, appellant, v. John Barton PAYNE, Secretary of the Interior;

No. 452. SANTA FÉ PACIFIC RAILROAD COMPANY, appellant, v. John Barton PAYNE, Secretary of the Interior; and

No. 693. John Barton PAYNE, Secretary of the Interior, plaintiff in error, v. The UNITED STATES of America ex rel. W. T. MOSIER et al. June 1, 1921. For opinions below, see (App. D. C.) 267 Fed. 653, Id., 656, and 269 Fed. 871. Mr. F. W. Clements, of Washington, D. C., for appellant. Albert B. Fall, successor to John Barton Payne as Secretary of the Interior, substituted as a party appellee and plaintiff in error herein on motion of Mr. Alexander Britton in that behalf.

(256 U. S. 701)

No. 875. PRINCESS AMUSEMENT COMPANY, petitioner, v. Jake WELLS. June 1, 1921. For opinion below, see 271 Fed. 226. Messrs. T. T. McCarley, W. C. Cherry and J. G. Stephenson, all of Nashville, Tenn., for petitioner. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied.

(256 U. S. 701)

No. 885. Alexis GEORGIAN, petitioner, v. Byron H. UHL, Acting Commissioner of Immigration, etc. June 1, 1921. For opinion below, Bee 271 Fed. 676. Mr. Walter Nelles, of New York City, for petitioner. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied.

(256 U. S. 702)

No. 900. WALKER BROS. COMPANY, petitioner, v. W. & H. WALKER, Inc., et al. June 1, 1921. For opinion below, see 271 Fed. 395. Messrs. Odin Roberts, Robert Cushman, Charles D. Woodberry, and Isaac E. Simons, all of Boston, Mass., for petitioner. Messrs. Dunbar, Nutter & McClennen, of Boston, Mass. (George R. Nutter and Jacob J. Kaplan, both of Boston, Mass., of counsel), for respondents. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the First Circuit denied.

(256 U. S. 687)

No. 901. SOUTHERN PACIFIC COMPANY et al., petitioners, v. OLYMPIAN DREDGING COMPANY. June 1, 1921. For opinion below, see 270 Fed. 384. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit granted.

(256 U. S. 702)

No. 903. J. E. SISTRUNK, petitioner, v. J. T. PENDLETON, Judge. June 1, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Georgia denied.

(256 U. S. 701)

No. 905. Mrs. Addie PROHASKA, widow, etc., et al., petitioners, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY. June 1, 1921. For opinion below, see 270 Fed. 91. Messrs. John D. Grace and M. A. Grace, both of New Orleans, La., for petitioners. Messrs. Terriberry, Rice & Young, of New Orleans, La. (George H. Terriberry, of New Orleans, La., of counsel), for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied.

No. - Original. The STATE OF TEXAS. | 231, 36 Stat. 1136) as amended by the act of complainant, v. The INTERSTATE COM- September 6, 1916 (c. 448, § 2, 39 Stat. 726 MERCE COMMISSION. June 6, 1921. Mo- [Comp. St. § 1214]). tion for leave to file bill of complaint herein granted, and process ordered to issue returnable on Monday, October 3, next.

No. 23, Original. The STATE OF OKLAHOMA, complainant, v. The STATE of TEXAS. June 6, 1921. See, also, 256 U. S. 602, 41 Sup. Ct. 621, 65 L. Ed. - Motion for leave to file petition in intervention of D. D. Brunson petitioner, v. Wesley L. SISCHO._June 6, granted.