Sumter County v. National Bank of Gainesville. deal less than their par or nominal value, as its capital may have been increased or diminished by gains or losses, but the tax is the same in each case. This shows that it is the shares which are intended to be taxed, and not the cash or other actual capital of the bank." In that case the distinction was carefully drawn between the shares of stock in a bank, and the capital stock. The State had demanded payment of the tax from the bank, and being refused, suit was brought, and a recovery had. The case is an authority for these propositions. First, that National banks, having stock invested in United States bonds, are not subject to taxation on their capital stock under State authority. Second, that shares in such banks are subject to taxation against the shareholders. Third, that when the State statute authorizes it, the bank may be compelled by suit to pay the taxes so assessed upon the shares; and fourth, in the absence of such legislative direction, such tax is collectible of the shareholders, in the same manner as other taxes are collected from individuals. It results from what we have said that the act "to restrict the power of taxation," etc., approved February 23, 1875 (Pamph. Acts, 49), so far as it may be supposed to relate to the capital stock of National banks, is inoperative. Should the tax be levied on the shares of the stock of the bank, as we have shown it may be, then the only authority for requiring the bank to pay such assessment is found in subdivision 7, section 369 of the Code of 1876. That section is composed of three paragraphs separated by semi-colons. The first and third of those paragraphs are clearly unconstitutional under the principles declared in Mayor, etc., v. Stonewall Insurance Company, 53 Ala. 570. We need not re-state the argument. The second clause refers to the first, is dependent on it, and cannot have an independent operation, the first being swept away. It relates to the tax authorized by the first paragraph, and to nothing else. Having shown that tax to be unconstitutionally levied, the second clause has no field of operation. Its language is "the same," that is, the tax of seventy-five cents on each share of one hundred dollars of the capital stock of every National banking association, to be in lieu of all taxation, State, county and municipal, on Atlantic National Bank v. Harris. such shares, "to be paid by each such association for the shareholders thereof." There is, then, no statute which requires the National banking associations to pay the State tax on the shares of such associations. It follows that such tax can only be assessed under subdivision 13 of section 362, Code of 1876, and can be collected only as taxes against other individuals are collected. This would work an affirmance of the judgment of the Circuit Court, even if the tax had been assessed against the several shares. Judgment affirmed. BRICKELL, C. J., dissenting. ATLANTIC NATIONAL BANK V. HARRIS. (118 Mass. 147.) - Change of State bank to National bank — action by latter on cause of action accruing to former. A State bank paid its president money to reimburse him for money which he falsely represented he had paid to its creditor. The State bank was afterward changed to a National bank, and the creditor recovered judgment against it for his debt. Held, that it could maintain an action against the president for money had and received, although the State statute provided that the State bank should be continued a body corporate for three years for the purpose of prosecuting and defending suits, closing its concerns, and conveying its property. A CTION for money had and received. The opinion states the facts. H. C. Hutchins, for defendant. C. A. Welch, for plaintiff. ENDICOTT, J. It appears, from the agreed statement of facts, that the Atlantic Bank, a corporation under the laws of this Commonwealth, was previously to 1863 the owner of certain real estate in St. Louis, which it had taken for debt. The defendant was then president of the bank, and in its behalf he employed one Atlantic National Bank v. Harris. Pierce, who was at that time in his personal service upon a salary to go to St. Louis and take charge of, manage, and improve the real estate. Pierce was engaged in that duty for twenty months. The defendant, in January, 1864, presented to the bank a bill of $1,506.67, for money paid by him to Pierce for his services; and on August 3, 1864, the bank paid the defendant that sum, and he receipted the bill. The defendant had not then paid the money to Pierce, as represented in his bill, and never paid him. In December, 1864, the Atlantic Bank was changed and converted into a National banking association, under the name of the Atlantic National Bank of Boston, the plaintiff in this action, and the defendant became president of the association. It is admitted that the defendant took all the property and paid all the debts of the State bank. On April 20, 1869, Pierce brought an action against the plaintiff for his services so rendered the Atlantic Bank, and recovered their value, in the same sum which had been paid the defendant upon his representation that he had paid Pierce. It is admitted that the plaintiff was liable for this debt, that it was rightfully recovered, and that neither the Atlantic Bank, nor the plaintiff, nor any officer of either institution, except the defendant, had any notice of Pierce's claim, or that he had not been paid, or of the plaintiff's claim upon the defendant, until Pierce's action was brought. The defendant contends upon these facts, that the plaintiff cannot maintain this action in its own name; and if it can, that the action is barred by the statute of limitations. The presiding judge in the court below held and found that the action could be maintained, and was not barred by the statute, to which the defendant excepts. [Omitting immaterial matter.] 1. The Atlantic Bank, being indebted to Pierce, could at the time of its conversion have maintained an action against the defendant for the money wrongfully obtained by him. That the plaintiff upon its organization became liable to Pierce for this debt of the Atlantic Bank is conceded, and the first question is, whether the right of action against the defendant passed to the plaintiff Atlantic National Bank v. Harris. with the other property of the Atlantic Bank, and whether it can maintain an action thereon in its own name. Under the statutes of the United States of 1863, ch. 58, § 61, and of 1864, ch. 106, § 44, any State bank could become or be converted into a National banking association. In such case, the articles of association, and the certificate of organization required by those statutes, were to be executed by a majority of the directors of the State bank; and such certificate must declare that the owners of two-thirds of the capital stock of the bank had authorized the directors to make such certificate, and to change and convert the bank into a National association. The majority of the directors are also empowered to execute all papers and to do whatever is necessary to complete the organization, and they are to continue to act as directors of the National association, until others are chosen and qualified under the provisions of the act. The par value of the shares, and also the amount of the capital stock, may remain the same, provided the capital shall not be less than that prescribed by the acts of Congress. To enable banks in this Commonwealth to become banking associations under the laws of the United States, and to surrender their charters, the legislature enacted the statute of 1863, ch. 244, and the statute of 1864, ch. 190. Both acts were in force when the plaintiff corporation was organized. These acts contain many provisions not material to this inquiry; but it is provided that when the stockholders have voted to become a National association, and the directors have procured the authority of the owners of two-thirds of the capital stock to make the certificate required by the laws of the United States, notice thereof shall be published, and also sent to each stockholder, and thereupon the bank commissioners shall determine and certify the market value of the shares, at the date of the certificate, to the directors, and any stockholder who has not given his authority to the directors, and who desires to surrender his certificate of stock, shall be paid by the bank the market value of the stock. Stat. 1863, ch. 244, §§ 2, 3; Stat. 1864, ch. 190, § 4. Security is also required to be given by the bank for the redemption by the association of bills issued before its conversion, and in certain contingencies and Atlantic National Bank v. Harris. under certain regulations the association may be authorized by the bank commissioners to reissue and continue in circulation such outstanding bills for a limited time. Stat. 1863, ch. 244, § 6; Stat. 1864, ch. 190, § 1; and while such bills are continued in circulation they are liable to taxation. Stat. 1864, ch. 190, § 3. See, also, subsequent acts in regard to the redemption, circulation, and taxation of bills. Stat. 1865, chs. 163, 185; 1866, ch. 223; 1868, ch. 210. Where a bank has complied with the requirements necessary to convert it into a National association, and proper certificates thereof have been given to the Governor and Council, notice to that effect shall be published, and the bank shall be deemed to have surrendered its charter, subject to the provision that it shall be continued a body corporate for the term of three years, for the purpose of prosecuting and defending suits, and to enable it to close its concerns and convey its property, but not for the purpose of continuing the business for which it was established. Stat. 1863, ch. 244, §§ 1, 8. This provision has been somewhat modified by the acts already cited and by the Stat. of 1869, ch. 437; and when a bank had not conveyed its real estate within the three years, the legislature has passed a special act to enable it to do so. Stat. 1869, ch. 295; 1870, chs. 15, 32, 38, 42. It appears that under the statutes of the United States and the Stat. of 1863 and 1864 of this Commonwealth, the Atlantic Bank was in December, 1864, changed and converted into a National banking association, under the name and style borne by the plaintiff, and that all the articles, certificates and papers necessary to complete its organization were executed, that all publications required were made, and that all the property of the State bank was duly transferred, to which proceedings the defendant, in his capacity of president, was a party. The evident intent of the statutes thus enacted by the United States and by this Commonwealth was to enable a State bank voluntarily to become a new organization under the laws and jurisdiction of the United States, by complying with the necessary formalities, and by the transfer of its stock, its property of every description and all its liabilities. The rights of any stockholder VOL. II - 56 |