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same ground taken in the previous case : People v. The Commis. sioners, 4 Wall. 244; People v. The Commissioners of Taxes, 35 N. Y. 423. Where a state imposes a tax on the capital of state banks, the shares in the hands of the stockholders being exempt, a law imposing a tax on the shares held in national banks violates the Act of Congress of 1864 and is void : Bradley v. People, 4 Wall. 459.
The state of. Kentucky passed a law imposing a tax on bank stock or stock in any moneyed corporation of loan or discount, of fifty cents on each share thereof, equal to one hundred dollars, and directed that the cashier of a bank whose stock is taxed should, on the first day in July of each year, pay into the treasury of the state the amount of tax due on the shares of the bank; imposing a penalty on cashier and his sureties for a failure to comply with the law. This is a tax on the shares of the stockholders and not upon the capital of the bank. The circumstance that the tax is collected through the officers of the bank does not alter the character of the tax. It is a common mode of collecting such taxes. The officer of the bank is made the tax collector of the state. National Bank v. Commonwealth, 9 Wall. 353. People v. Bradley, 39 Ill. 130, and Mc Veigh v. Chicago, 49 Ill. 318, support the doctrine that shares of national banks may be taxed by the states : S. P. Smith, Co. Treas., v. Webb, 11 Minn. 500. The doctrine of the exemption of the instrumentalities of the Federal government from taxation by the states, and its limitation, of which this case is an example, is well stated by MILLER, J.: “The doctrine has its foundation in the proposition, that the right of taxation may be so used by the states as to destroy the instrumentalities by which the government proposes to effect its lawful purposes in the states.
.. The limitation is, that the agencies of the Federal, government are only exempted from state legislation so far as that legislation may interfere with or impair their efficiency in performing the functions by which they are designed to serve that government. Any other rule would convert a principle founded alone in the necessity of securing to the government of the United States the means of exercising its legitimate powers, into an unauthorized and unjustifiable invasion of the rights of the states :" MILLER, J., 9 Wall. 361-62.
Where a state imposes a tax on the shares of a national bank, at the same rate as state banks, with the exception of two banks, as to which it had previously disabled itself by a contract from taxing beyond a certain amount, the rate upon the national banks being at a rate higher than these latter banks, is not a violation of the Act of 1864. That act only requires the states to tax as far as it has capacity the shares of national banks in like manner as banks of its own creation : Lionberger v. Rowse, 9 Wall. 468. So where there is a tax on shares of national banks at the same rate as other moneyed capital, but some moneyed capital in the county where the bank is located is exempt from taxation, the tax is valid : Everitt's Appeal, 71 Penna. St. 216. The principle has been applied to cases where there is a tax upon shares of national banks and no tax upon shares of state banks, eo nomine, and the tax imposed on the state banks is a full equivalent for that imposed on the shares of the national banks, as a tax of three-quarters of one per cent. on the amount of the capital stock of state banks, regardless of the fact that a portion of its capital is invested in United States securities, or has been lost in business: Van Slyke v. State, 23 Wisc. 655; Bagnall v. State, 25 Id. 112; but where the tax imposed on the capital, profits and time deposits of state banks, is subject to a deduction for real estate and United States bonds, it is not regarded as an equivalent for that imposed on the national banks : Frazer et al. v. Seibeon et al., 16 Ohio N. S. 614. Although the tax is in form upon the capital of the bank, that is, is regulated by the amount of the capital, if there be no deductions, and the same rate of tax is required, the burden on the stockholders or on the shares is the same; but if there are deductions, then the tax on the state banks is diminished, and to that extent the rate is higher on the shares of the national banks.
The National Banking Act requires the shares to be taxed" at the place where the bank is located and not elsewhere."
The courts of Maine and other states hold that the place contemplated is the town or district in which the bank was situated : Packard v. Lewiston, 55 Maine 456; Abbott v. Bangor, 56 Id. 310; S. P. Stratham v. Mandeville, 33 Ind. 111; People v. The Commissioners of Taxes, 35 N. Y. 423–438; others that the place intended was the state, and that the state, in exercising the right of taxing the shares, might assess them at the residence of the owner or at the town in which the bank was located: Austin v. Aldermen of Boston, 14 Allen 359 ; Clapp v. Burlington, 42 Vt. 579. In 1868 Congress gave a legislative construction to the Act of 1864,
by amending that act and declaring that the words, “ the place where the bank is located and not elsewhere,” shall be construed to mean, “ the state within which the bank is located :" 15 Stat. at Large 31. This act abolishes the rule as to shares in national banks, that personal property of an intangible character follows the
person for the purposes of taxation, and gives it a situs of its own, to wit, that of the state in which the bank is located, and such state may tax these shares whether the owners are residents or non-residents of the state: Providence Inst. for Savings & Jewell v. City of Boston, 101 Mass. 575; Tappan v. Merchants' Nat. Bank, 19 Wall. 491. The case last cited from Massachusetts speaks of this act as giving to national bank shares to some extent the character and fixity of real estate, and the latter is authority for the position that such shares may be assessed in the town in which the bank is located, whether the owners are residents of the town or reside in some other part of the state, or are non-residents of the state. But it is submitted that it is also true that residents of the state may still be assessed at their residence when it is different from the location of the bank. A statute contemplating such an assessment has been held valid : Austin v. The Aldermen, 7 Wall. 695; but in that case the residence of the party assessed and the location of the bank were the same, and the court refused to express any opinion as to the validity of such an act, if the residence and location were different.
(b) Other Instrumentalities.—The states cannot tax an officer of the United States for his office, nor tax the emoluments of the office. The officers of the government are necessary in its administration ; if they can be interfered with in any manner by the states, the government would not be supreme : Dobbins v. Commissioners of Erie, 16 Pet. 435 (Cond. U. S. 370). But an officer of the United States army residing in Philadelphia, although without any domiciliary intention, is liable to be taxed for his household furniture, or other personal property : Finley v. City of Philadelphia, 32 Penna. St. 381. So an enlisted soldier, possessed of real and personal property situated in the town in which he is stationed, is liable to be taxed for such property, although he is not liable to taxation by reason of his being stationed there as a soldier. And as to the tax for which he is liable, he may be arrested for nonpayment under the laws of the state : Webster v. Seymour, 8 Vt. 135. Massachusetts imposed a tax on the income from any profession, trade or employment.” A clerk in a post-office, who was appointed by the deputy postmaster, and whose appointment was approved by the postmaster-general, was assessed upon his income, which included his salary as such clerk. It was hield, that this did not come within the rule of Dobbins v. Commissioners of Erie; that was a tax upon the office, this on the income, and the clerk was made liable for the tax: Melcher v. City of Boston, 9 Metc. 73. It is difficult to see the force of this distinction. A clerk is as necessary in carrying on the operations of the postal department of the government as the postmasters themselves, and a tax on the emoluments of the clerk, althcugh in form a tax on income, is as much a burden upon one of the instrumentalities of the government as a tax on the income of the postmaster himself, and void to the extent that the emoluments of his office constitute that income.
The forts, arsenals, dockyards, mints, post-offices, custom-houses, or any other public property of the United States, are not liable to state taxation, coming within description of instrumentalities of the government, necessary to the exercise of the power vested in it: Const. U. S., art. 1, $ 8, par. 17. The public domain is not liable to taxation by the states. When the government parts with the title under the land laws, it becomes liable to taxation in the hands of the purchaser. The contract of purchase is complete when the certificate of entry is executed and delivered ; thereafter the land ceases to be a part of the public domain and is liable to taxation by the states : Carroll v. Safford, 3 How. 450 ; Witherspoon v. Duncan, 4 Wall. 210. Land as such in the occupancy of a pre-emptor, whose right to purchase has not been determnined in his favor, is not subject to taxation until it has been paid for. Up to that time, it is only a proffer to a certain class of persons that they may become purchasers. People v. Shearer, 30 Cal. 615; Grand Gulf Railroad f. B. Co. v. Bryan, 8 Smedes & M. 268. Parleer v. Winsen, 5 Kansas 362, seems to be contrà, but this was under a treaty with Indians, providing “none of such lands shall be subject to taxation until patents are issued therefor.” But where occupants of public lands of the United States, whether a pre-emptor or one without license, has placed improvements on them, they are liable to assessment and taxation, if made so by express statute of the state: People v. Shearer, 30 Cal. 645. This species of property, whose existence is recognised in many of the western states, as capable of being bought, sold, and taken in execution, is thus described by SAWYER, J.: “These possessions are recognised as a species of property subsisting in the hands of the citizen. It is not the land itself, nor the title to the land, nor is it the identical estate held by the United States. It is not the pre-emption right, but it is the possession and valuable use of the land, subsisting in the citizen." The pre-emption right is thus described in another state : “Strictly speaking it is not an estate within
definition known to the common law. It is not an interest in the legal title; but only a right of occupancy for the time being, with a privilege of purchasing at some future period, at a stipulated price. It is treated as property in this state, taken and sold on execution, passes to an assignee in bankruptcy and may pass by deed or other transfer : Delaney v. Barnett, 4 Gilm. (Ill.) 454, 492; Pierson v. David, 1 Iowa 23; Bush v. Marshall, 6 How. 291; Thredgill v. Pintard, 12 How. 36. So the possessory right in a mining claim is subject to taxation, and not within the express exemption of the act admitting California into the Union, " that the state shall never lay any tax or assessment of any description whatever upon the public domain :" State v. Moore, 12 Cal. 56; affirmed in People v. Frisbie, 31 Id. 146; People v. Cohen, 31 Id. 210; People v. Black Diamond Co., 37 Id. 54.
The title to all land in this country is in the states, subject to the right of occupancy of the Indians, who have no right to sell or dispose of it, except by the consent of the state in which it is located. The state has the privilege of purchasing from the Indians. The lands occupied by the Indians are not subject to taxation by the state, but where there is a treaty by which the Indian title is extinguished, and which provides for their removal beyond the Mississippi within the period at which the purchaser at a tax sale would be entitled to possession, the lands are subject to taxation : Fellows v. Deniston, 23 N. Y. 420. Nor are these lands subject to taxation for the special purpose of surveying them and opening roads through them, although the Indians, with the consent of the United States, have agreed to sell to private individuals and to give possession within a certain period, it is only after the lapse of such period that they are taxable: The New York Indians, 5 Wall. 761. Nor is the principle affected by the fact that the primitive habits and customs of the tribe, when in a sav