Wasson v. First National Bank of Indianapolis.

deducted, as compared with the whole of the moneyed capital of the State. This case comes here upon a demurrer to appellee's complaint for an injunction. Unless the court may take judicial notice of the fact that the moneyed capital from which the tax payer may deduct his debts as here decided, is a material portion of the whole moneyed capital of the State, the complaint is fatally defective, because it contains no averment as to that fact.

Our statute provides that matters of which judicial notice is taken need not be stated in a pleading. R. S. 1881, § 374. May the court take judicial notice of that fact? As we have seen, for the purposes of taxation in the hands of the tax payers, the whole of the moneyed capital of the State, as specified in the schedule provided by the Tax Law, consists of money on hand or on deposit within or without the State, money loaned, bonds issued by bodies corporate, bonds issued by public corporations, and shares of stock in corporations, which includes shares of bank stock. For convenience, these several items may be regarded as constituting the first division of the moneyed capital of the State. From the assessed value of none of them can the debts of the tax payer be deducted.

Another division includes all other moneyed capital of the State, the items of which consist, as we have also seen, of notes, mortgages and judgments, except for money loaned, amounts due for goods, wares and merchandise of all kinds, raw material, farming implements, machinery and manufactured articles of all kinds, sold at wholesale or retail, amounts due for labor and professional services, amounts due upon public improvements, on account of sales of real estate, live stock and farm products, and all other credits of every description due from any person, company or corporation, whether drawing interest or not, except as included in the first division above. These several items, from the assessed value of which debts may be deducted, may be regarded as constituting the second division of the moneyed capital of the State.

That the second division constitutes a very large and material part of the credits in the business of the State, and thus a very large and material part of the whole moneyed capital of the State is a matter of such common knowledge as to be known to the

Wasson v. First National Bank of Indianapolis.

courts. There are many things of which the courts must take judicial notice. For example,. they take judicial notice of the seasons and the general course of agriculture. Abel v. Alexander, 45 Ind. 523; 15 Am. Rep. 270; Tomlinson v. Greenfield, 31 Ark. 557. That whisky, beer and gin are intoxicating. Myers v. State, 93 Ind. 251; Egan v. State, 53 id. 162. That ale is malt liquor. Wiles v. State, 33 Ind. 206. Of the time it takes to go from one city to another. Fitzpatrick v. Papa, 89 Ind. 17. See also Pearce v. Langfit, 101 Penn. St. 507; 47 Am. Rep. 737. Of the geography of the country, and that a point on a railroad, one mile from Rosedale, is in Park county. Terre Haute, etc., R. Co. v. Pierce, 95 Ind. 496. Of the population of towns and cities. Kalbrier v. Leonard, 34 Ind. 497. Of the meaning of C. O. D. United States Ex. Co. v. Keefer, 59 Ind. · 263. Of the meaning of S. E. 1 of N. W. 1, sec. 18, T. 21 N., R. 7 E., forty acres. Jordan Ditching, etc., Ass'n v. Wagoner, 33 Ind. 50; Frazer v. State, etc., 106 id. 471. That the use of a farm in summer is worth more than in winter. Ross v. Boswell, 60 Ind. 235. Of the duties and powers of cashiers of banks. Farmers, etc., Bank v. Troy City Bank, 1 Doug. (Mich.) 457; La Rose v. Logansport Nat. Bank, 102 Ind. 332; Sturges v. Bank of Circleville, 11 Ohio St. 153. Of the facilities of travel between different points. Hipes v. Cochran, 13 Ind. 175; Manning v. Gasharie, 27 id. 399. Of the fact that there are classes of notes and bills other than bank bills in circulation in this State as money. Hart v. State, 55 Ind. 599. Of the general pecuniary condition of the country as a part of the history of the times. Ashley v. Martin, 50 Ala. 537. Of the division of the Methodist Church into the Methodist Church North and the Methodist Church South. Humphrey v. Burnside, 4 Bush (Ky.), 215 (225). That ice-cream freezers had been in use before the invention for freezing dead bodies or fish. Brown v. Piper, 91 U. S. 37, 42 ; Terhune v. Phillips, 99 id. 592; King v. Gallun, 109 id. 99. The courts of the State are bound to take notice, from its general history, that "during and since the war of the Rebellion the Adjutant-General of this State has made records of the musterrolls of the different regiments of volunteers furnished by this State in the military service of the United States." Board,

Wasson v. First National Bank of Indianapolis.

etc., v. May, 67 Ind. 562. Upon the general subject of judicial knowlege, see Buskirk Pr. 15 et seq., and cases there cited.

Mr. Greenleaf, says: "In fine, courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction." 1 Greenl. Ev., § 6, pp. 12, 13; Brown v. Piper, supra

In speaking of what courts will take judicial notice, it was said in the case of Ho Ah Kow v. Nunan, 5 Sawy. (U. S. Cir. Ct., Dist. Cal.) 552 (560): "Besides, we cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men."

To hold in the case before us, that it was necessary to aver and prove that the above second division of the moneyed capital constitutes a large and material part of the whole moueyed capital of the State, would be to hold that the courts cannot know judicially what must be known to the mass of the people, and what any intelligent person would be reluctant, if not ashamed, to confess he does not know.

To say that from this division of the moneyed capital, the tax payer may deduct his debts, and that the holders of shares of National bank stock, having no other credits from which to deduct their debts, may not deduct them from the assessed value of such shares of stock, would be to establish such an inequality and discrimination against capital invested in such shares of stock, as the act of Congress, with the interpretations given to it by the Supreme Court of the United States, will not tolerate.

The statutory privilege to tax payers, of deducting their debts from the above second division of moneyed capital, is practically to relieve the most, if not the whole, of that capital from taxa tion, and leave the burdens to rest upon other property, including other moneyed capital. A tax payer having that kind of moneyed capital may have a deduction of his debts from the assessed value thereof; while another, not having such capital but having money on hand or on deposit, money loaned, and bonds and stocks (other than shares of National bank stock) may not have such a deduction. If there is any inequality or wrong in that, as between citizen tax payers, it is a matter wholly for the Legislature.

Wasson v. First National Bank of Indianapolis.

The holders of shares of National bank stock are upon an equality with tax payers having money capital of the second division above, and if, as between such holders and tax payers owning moneyed capital of the first, and not of the second division above, there is an inequality, it is a matter for the Legislature and for Congress.

The Legislature may so shape the State laws as to result in this inequality. Against such legislation, there is no inhibition in the National Bank Act. Possibly, the Legislature might avoid this inequality, if it be such, by providing that tax payers, not having shares of National bank stock, may deduct their debts from all or a certain proportion of their moneyed capital, and giving the same right to holders of shares of National bank stock to deduct their debts from a like proportion of their moneyed capital. Possibly, Congress might amend the National Bank Act to advantage. Doubtless, many holders of shares of National bank stock may have moneyed capital of the second division alone, and if so, they may deduct their debts from its assessed value, and thus the privilege of deducting their debts from the shares of stock in such cases can injure no one, as the debts can be deducted but That shares of National bank stock are taxed by State authority at all is a matter of grace or license, and not of right. Sự the Supreme Court of the United States holds. The States therefore must tax shares of stock in accordance with that license.

once.

After a thorough re-examination of the question involved, we are constrained to hold that under the averments of the complaint, the stockholders therein named are entitled to deduct their just debts from the assessed value of their shares of National bank stock.

It has been suggested, in argument, that we ought, if possible, to rule otherwise, in order that the case might go upon appeal to the Supreme Court of the United States for a decision by that tribunal. We should be glad to have the case thus appealed, but we could not make a different ruling without disregarding our deliberate judgment, and placing this court, as we think, in an attitude of insubordination and hostility to the Supreme Court of the United States. It is the province of that court to interpret the VOL. III-55.

McCann v. First National Bank of Jeffersonville.

acts of Congress, and the duty of the State courts to adopt and follow such interpretation.

The court below, at Special Term, sustained a demurrer to the complaint. That ruling was reversed at General Term.

The judgment at General Term is affirmed, at appellant's cost.

ELLIOTT, J., took no part.

MCCANN V. FIRST NATIONAL BANK OF JEFFERSONVILLE.*

(112 Ind. 354.)

Reduction of capital-surrender of stock — rights of stockholders.

The capital of a National bank having become impaired by the non-payment of the interest on some paper among its assets, to the amount of $71,000, in order to avoid an assessment by the Comptroller the stockholders reduced its capital stock, and carried the bills and notes to the account of suspended or "bad debts," which were not thereafter included as assets, although retained in its custody. Some years afterward the bank realized $75,000, from collaterals pledged for the security of that paper. In a suit by a stockholder to recover his share of the amount realized, proportioned to the amount of stock surrendered, held, that he could not recover.

A

PPEAL from Circuit Court, Clark county.

Howard, Reed & Stannard and A. Dowling for appellant.

J. K. Marsh and Brown, Humphries & Davis, for appellee.

MITCHELL, C. J. The First National Bank of Jeffersonville was organized some time prior to the 17th day of August, 1876, in pursuance of the act of Congress which provides for the or ganization, and prescribes rules for the regulation and government of National banking associations. The bank had at the date mentioned a paid-up capital of $300,000, of which Michael V. McCann owned seventy-seven shares of $100 each. Owing to the fact that there were among its assets about $71,000 of bills

*To same effect, Wools v. First Nat. Bk. of Jeffersonville, 112 Ind. 600.