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 [217]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 [218]*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[219] 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 the judgment in this case should be affirmed, As a result we find in this record no means of ascertaining whether there is any unfavorable discrimination against the shareholders of national banks in the taxation of their shares, and in favor of other moneyed capital in the hands of individual citizens. There is nothing upon the face of these statutes which shows such discrimination, and therefore it would seem that the plaintiff in error has failed to make out a case for the intervention of the court. HENRIETTA MINING & MILLING COM-[221] v. HENRY JOHNSON. (See S. C. Reporter's ed. 221-225.) Service of summons upon foreign corpora tion-Arizona Code, §§ 348, 712, 713, as to such service. 1. 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. [No. 139.] ruary 27, 1899. to sixty-five per cent as fixed by the board ON APPEAL from a judgment of the Su (other property being valued at only sixty per cent), amounted to such a discrimina[220]tion 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 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 de- | none such was filed by the plaintiff in error. 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. [222]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 Messrs. William H. Barnes and Frank Messrs. E. M. Sandford and Robert E. [222] *Mr. Justice Brown delivered the opinion 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." 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 the clerk shall issue the ritory, and said sheriff shall summons, 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 apWe are of pointment had never been made. opinion, however, that sections 348, 712, and 713, providing *specially for services upon[224] foreign corporations, were not intended to be exclusive, and were merely designed to secure a special mode of service in case the corporation had ceased to do business in the terriOur 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, takor 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 docorder 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 [223]appointment of an agent, upon *whom all no- to domestic companies. No penalty is imtices 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 serv 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 publi173 U. S. 676 cation provided by section 712, which, under | Palmer was sufficient, and the judgment of the decisios of this court, would be ineffect the Supreme Court of Arizona is therefore ual to sustain a personal judgment. Pen-affirmed. noyer v. Neff, 95 Û. S. 714 [24: 565]. It is incredible that the legislature should Appt., v. have intended to limit its own citizens to HENRIETTA MINING & MILLING COMPANY, The cases cited by the plaintiff in error do not sustain its contention. In the Southern Building and Loan Association v. Hal SAMUEL HILL. (See S. C. Reporter's ed. 225-226.) [No. 138.] lum [59 Ark. 583], 28 S. W. Rep. 420, it was Submitted January 15, 1899. Decided Feb- than that in which the action was begun, and which failed to show that he had been designated as prescribed, was insufficient to authorize a judgment by default. Obviously, by section 348, it is intended that service may be begun in any county and served upon the appointed agent, and all for which this [225]case is authority is that, if it be served upon any other agent, the action must be brought in the county where such agent is served. The opinion of the court was put upon this ground. In the case under consideration, Palmer, the superintendent, was served in the county of Yavapai, where the suit was begun. ruary 27, 1899. ON APPEAL from a judgment of the Su- Messrs. William H. Barnes and Frank BY THE COURT: The facts in this case, so[226] BALTIMORE & OHIO RAILROAD COM- บ. A. Hervey, Deceased. (See S. C. Reporter's ed. 226-231.) The case of the State v. The United States Mutual Accident Association, 67 Wis. 624, is against the proposition for which it is cited. In that case service of a summons upon an unlicensed foreign insurance company, by delivering a copy to an agent of the company, was held to be sufficient, the defendant DAVID JOY, Admr. of the Estate of John never having made an appointment of an agent under the statute. Said the court: "If the argument of counsel to the effect that section 1977 only relates to agents of such foreign insurance companies as are duly licensed to do business within this state is sound, then there would be no possible way of commencing an action against an unlicensed foreign insurance company doing business in this state in violation of law. In other words, such construction would reward such foreign insurance companies as refused to pay the requisite license, by enabling them to retain the license money, and then shielding them from the enforcement of all liability, whether on their contracts or otherwise, in the courts of Wisconsin. Such construction would defeat the whole purpose and scope of the statute." Action for injuries in the United States circuit court sitting in Ohio, when does not abate on death of plaintiff-removal of case to Federal court-U. S. Rev. Stat. § 955-revivor of actions governed by the laws of the forum. 1. 2. An action pending in the circuit court of the United States sitting in Ohio, brought by the injured person as plaintiff to recover damages for injuries sustained by the negligence of the defendant in Indiana, does not finally abate upon the death of the plaintiff, notwithstanding the fact that, had no suit been brought at all, the cause of action would have abated both in Indiana and Ohio, and that, even if a suit had been brought in Indiana, the action would have abated in that state. A right given by the statute of a state to revive a pending action for personal injuries, in the name of a personal representative of a deceased plaintiff, is not lost upon the removal of the case into a Federal court. The cases from Michigan are too imperfectly reported to be of any practical value. In Desper v. The Continental Water Meter Company, 137 Mass. 252, the service of a bill in equity by subpœna upon the treasurer of a foreign corporation was held to be unauthorized by any statute, and also that there was no method of bringing it in except 3. U. S. Rev. Stat. § 955, does not apply to an by means of an attachment of its property. We are of opinion that the service upon 4. action brought in one of the courts of a state whose statutes permit a revivor in the event of the death of a party before final judgment. The question of the revivor of actions brought in the courts of a state for personal 677 injuries is governed by the laws of that state, rather than by the law of the state in which the injuries occurred. [No. 129.] 1, p. 1491. That section was construed in Ohio & Penn. Coal Co. v. Smith, Admr. 53 Ohio St. 313, which was an action for personal 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. N A CERTIFICATE from the United ing one at the time of the death of the plaintiff. It is not within any of the enumerated exceptions of section 5144, and was there O`States Circuit Court of Appeals for the fore properly revived and prosecuted to judg Sixth Circuit of a question of law for the decision of this court in an action brought by John A. Hervey against the Baltimore & Ohio Railroad Company, in the Common Pleas Court of Hancock County, Ohio, to recover damages for personal injuries caused by the negligence of the railroad company, which action was removed into the Circuit Court of the United States for the Northern District of Ohio. After such removal plaintiff died, and the action was revived in the name of his administrator appointed in Ohio. Question answered in the negative. Messrs. Hugh L. Bond, Jr., and J. H. Collins for plaintiff in error. No counsel for defendant in error. [226] *Mr. Justice Harlan delivered the opinion of the court: This case is before us upon a question of law certified by the judges of the United States circuit court of appeals for the sixth circuit under the sixth section of the act of March 3d 1891, chap. 517 (26 Stat. at L. 826). [227] *It appears from the statement accompany ing the certificate, that on the 18th day of October, 1891, John A. Hervey, a citizen of Ohio residing in Hancock county in that state, was a passenger on a train of the Baltimore & Ohio Railroad Company between Chicago, Illinois, and Fostoria, Ohio. While upon the train as passenger he was injured at Albion, Indiana, in a collision caused by the negligence of the railroad company. He brought suit in the common pleas court of Hancock county, Ohio, to recover damages for the personal injuries he had thus received. Upon the petition of the railroad company the suit was removed into the circuit court of the United States for the northern district of Ohio upon the ground of diverse citizenship. After such removal Hervey died, and, against the objection of the railroad company, the action was revived in the name of the administrator of the deceased plaintiff, appointed by the proper court in Ohio. At the time of Hervey's death the common-law rule as to the abatement of causes of action for personal injuries prevailed in Ohio. But by section 5144 of the Revised Statutes of that state, then in force, it was provided that, "except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party." Rev. Stat. Ohio 1890, vel. ment in the name of the administrator of the deceased plaintiff." The Revised Statutes of Indiana, in which state the injury was received, provide that "no action shall abate by the death or dis-[228] ability of a party, or by the transfer of any interest therein, if the cause of action survive or continue" (§ 271); also, that "a cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment and malicious prosecution." (§ 282). By section 955 of the Revised Statutes of the United States, brought forward from the judiciary_act of September 24th, 1789 (1 Stat. at L. 90, chap. 20, § 31), it is provided that "when either of the parties, whether plaintiff or petitioner or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment." The question upon which the court below desires the instruction of this court is this: "Does an action pending in the circuit court of the United States sitting in Ohio, brought by the injured person as plaintiff to recover damages for injuries sustained by the negligence of the defendant in Indiana, finally abate upon the death of the plaintiff in view of the fact that, had no suit been brought at all, the cause of action would have abated both in Indiana and Ohio, and that, even if suit had been brought in Indiana, the action would have abated in that state?" If the case had not been removed to the circuit court of the United States, it is clear that under the statutes of Ohio as interpreted by the highest court of that state the action might have been revived in the state court in the name of the personal representative of Hervey, and proceeded to final judgment. We think that the right to revive attached under the local law when Hervey brought his action in the state court. It was a right of substantial value, and became inseparably connected with the cause of action so far as the laws of Ohio were concerned. Was it lost or destroyed when, upon the petition of the railway company, the case was removed for trial into the circuit court of the United States? Was it not, rather, a right that inhered in the action, and accompanied it when in the lifetime of[229] Hervey the Federal court acquired jurisdiction of the parties and the subject-matter? This last question must receive an affirma |
