banks located in that State, and construed by the New York Court of Appeals to exclude in the valuation of these shares any deduction therefrom on account of debts due by their owners, is in conflict with section 5219 of the Revised Statutes of the United States. This section permits the shares of National banks to be "included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the State within which the association is located," with the qualification "that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State." The law of New York allows debt deductions in the valuation of "other moneyed capital in the hands" of its citizens; but the act of 1866, as explained by the Court of Appeals, excluded bank shares, whether State or National, from this allowance.

The Supreme Court, in the opinion stated by Mr. Justice Miller, held that under the National Constitution the authority of States to tax the shares of National banks at all is derived from the enabling or permissive legislation of Congress, and that the New York law of 1866, when applied to these shares, did not conform to the conditions imposed by this legislation. It denied to bank shares in their valuation the debt deductions which are by law permitted in the valuation of "other moneyed capital;" and this discrimination, when applied to the shares of National banks, was held to be inconsistent with the law of Congress.

The Legislature of New York has since this decision changed the law, and provided that the holder of bank shares "shall be allowed all the deductions and exemptions allowed by law in assessing the value of other taxable personal property owned by individual citizens of this State." Session Laws of 1880, ch. 596, § 3. This obviates the objection of the Supreme Court to the bank tax law of 1866.

2. The case of Kirtland v. Hotchkiss, 491, relates to the reserved power of the States to impose taxes upon their own citizens. Mr. Kirtland, who was a citizen of Connecticut, held obligations executed in Chicago, made payable in that city, and also secured by deeds of trust upon real estate there situated. According to the law of Connecticut these evidences of debt were taxable in that State as personal property. Mr. Kirtland resisted this taxation as being repugnant to the Constitution of the United States, and finally carried the question to the Supreme Court.

The court in this case decided that "the Constitution does not prohibit a State from taxing her resident citizens for debts held by them against a nonresident, evidenced by his bonds, payment whereof is secured by his deeds of trust and mortgages upon real estate situate in another State," and that "for the purpose of taxation, a debt has its situs at the residence of the creditor, and may be there taxed." The question then whether Mr. Kirtland should in Connecticut, the place of his residence, be taxed on these obligations, belonged exclusively to the legislative discretion of that State. The National Constitution does not limit or qualify this discretion.

Mr. Justice Harlan, in stating the opinion of the court, said: "So long as the State, by its laws prescrib ing the mode and subjects of taxation, does not entrench upon the legitimate authority of the Union, or violate any right recognized or secured by the Constitution of the United States, this court, as between the State and its citizen, can afford him no relief against State taxation, however unjust, oppressive, or onerous." The cases cited in support of this general doctrine are McCulloch v. The State of Maryland, 4 Wheat. 428; The Providence Bank v. Billings, 4 Pet. 563; St. Louis v. The Ferry Co., 11 Wall. 423; and State Tax on Foreign-held Bonds, 15 id. 300.

3. In Guy v. Baltimore, 434, the court, after citing a series of decisions in similar cases, proceeded to say: In view of these and other decisions of this court, it must be regarded as settled that no State can, consistently with the Federal Constitution, impose upon the products of other States brought therein for sale, or upon citizens because engaged in the sale therein, or the transportation thereto of the products of other States, more onerous public burdens or taxes than it imposes upon the like products of its own territory. If this were not so, it is easy to perceive how the power of Congress to regulate commerce with foreign nations and among the several States could be practically annulled, and the equality of commercial privileges secured by the Federal Constitution to citizens of the several States be materially abridged and impaired."

Applying this principle to the case in hand the court held that the ordinance of the city of Baltimore which under the name of wharfage charges, exacted higher fees from vessels laden with the products of other States than from vessels laden with the products of Maryland, is unconstitutional. The exaction was regarded as being in effect "taxation upon inter-State commerce," and also as inconsistent with "the power of Congress over the subject of commerce."

4. The Trade-mark cases, 82, brought before the court the question whether sections 4937-4947 of the Revised Statutes of the United States, providing for the registration of trade-marks in the Patent Office, and the act of August 14, 1876 (19 U. S. Stat. at Large, 141), providing penalties for counterfeiting or illegally using the registered trade-marks of others, are authorized by the Constitution of the United States. Two clauses of the Constitution were considered in disposing of this point.

The first of these clauses gives to Congress the power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The court held that a trade-mark is neither a writing nor a discovery within the meaning of the Constitution, and hence that this clause gives to Congress no authority to legislate in regard to it.

The other clause authorizes Congress "to regulate commerce with foreign nations and among the several States, and with the Indian tribes." This provision does not, in the judgment of the Supreme Court, sustain the trade-mark legislation of Congress. Even if the regulation of trade-marks were included in the power to regulate commerce-a point which the court did not decide- still such regulation would be limited to the commerce placed by the Constitution under the control of Congress, and could not be extended to the purely domestic commerce which is carried on within the boundaries of a State. The trade-mark legislation in question is evidently not thus limited. As remarked by Mr. Justice Miller, "its broad purpose was to establish a universal system of trade-mark registration, for the benefit of all who had already used a trademark, or who wished to adopt one in the future without regard to the character of the trade to which it was to be applied, or the residence of the owner, with the solitary exception that those who resided in foreign countries which extended no such privileges to us were excluded from them here." Such being the character of the legislation, it was regarded by the court as an attempt to exercise "a power not confided to Congress."

As to the suggestion that the legislation might be held valid in application to foreign and inter-State commerce and commerce with the Indian tribes, Mr. Justice Miller replied that "it is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear, in order that crimes may be punished which are not described in language which brings them within

the constitutional power of that body." The court could not undertake thus to revise and virtually alter the legislation of Congress. It declined to do so in The United States v. Reese, 2 Otto, 214.

Mr. Justice Miller said in conclusion: "The questions in each of these cases, being an inquiry whether these statutes can be upheld in whole or in part as valid and constitutional, must be answered in the negative; and it will be so certified to the proper Circuit Courts."

5. In Ex parte Siebold, 371, certain sections of the Federal election laws, as contained in title XXVI of the Revised Statutes of the United States, and relating to the appointment, powers and duties of supervisors of election and the powers and duties of marshals, and also the penal sections 5515 and 5522 of the same Statutes, came before the court for consideration. The main question was whether this legislation lies within the constitutional power of Congress. The provision of the Constitution upon which the legislation rests for its validity is in these words: "The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators." Art. 1, § 4.

The court held that this section of the Constitution sustains the legislation, and on this ground declined to grant the application for a writ of habeas corpus in behalf of the petitioners who had been indicted and convicted under these statutes. The substantial essence of the opinion, as found in the elaborate deliverance of Mr. Justice Bradley, may be embraced in the following propositions: (1) That under this clause of the Constitution Congress may "make" all the regulations in respect to such elections, "except as to the places of choosing senators," or may "alter" those made by a State, either "wholly or partially." (2) That the regulations made by Congress, so far as they are inconsistent with those made by a State, supersede and repeal the latter, and so far as they are not thus inconsistent, leave State regulations undisturbed, and simply operate concurrently with them. (3) That when Congress legislates on the subject the State laws which it "sees no occasion to alter" and does not alter, "but which it allows to stand, are in effect adopted by Congress." (4) That Congress may, in the exercise of its supervisory power, impose new duties upon State officers of election, or addional penalties for any breach of duty or commission of fraud, and may enforce either the laws of the State or its own laws prescribing the duties of such officers, since the Government of the United States is directly involved in and concerned with such elections. (5) That Congress has power to vest in the Circuit Courts of the United States the appointment of supervisors of election, as provided for by the statutes in question. (6) That the penal sections 5515 and 5522, defining the offenses for which indictments might be framed, and, on conviction, punishment might be inflicted, are an exercise of the power belonging to Congress, and that the Circuit Courts of the United States have jurisdiction to try and punish these offenses.

The result in this case is a judicial affirmation of the constitutionality of those sections of the Enforcement Act of May 31, 1870, and the amendatory act of February 28, 1871, which furnished the sections of the Revised Statutes of the United States that came under the consideration of the court. 16 U. S. Stat. at Large, 140 and 433. The dispute between party politicians as to the validity of this legislation is settled by the highest judicial authority in the land.

6. In Ex parte Clarke, 399, the same general questions were before the court, and the same conclusions reached as in Ex parte Siebold. The indictment in

this case was under section 5515 of the Revised Statutes of the United States, and the court held that Congress had power to pass the law under which the conviction was had, and that the Circuit Court had jurisdiction of the offense. The offense consisted in a violation of the law of Ohio, by Clarke, who was a State officer at an election for a representative in Congress. He violated that law in not conveying the poll-book, after it had been sealed up and delivered to him for that purpose, to the county clerk, and in allowing it to be broken open.

Section 5515 of the Revised Statutes of the United States provides that "every officer of an election at which any representative or delegate in Congress is voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any State, territorial, district or municipal law or authority, who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof, or who violates any duty so imposed," or who does any of the other things specified in the section, "shall be punished as prescribed in section 5511" of the same Statutes. The recitals of this section covered the actions set forth in the indictment against Clarke. Hence the court, for the reasons stated in the case of Siebold, dismissed the application for habeas corpus and remanded the prisoner to the custody of the United States marshal.

7. The case of Tennessee v. Davis, 257, relates to the right of removal in a criminal prosecution from a State court to the proper Federal court. Davis, who was a United States officer duly appointed as a deputy collector of internal revenue, and who had been indicted for murder in a State court of Tennessee, presented to the proper Circuit Court of the United States his application to have the case removed thereto for trial, claiming the right under section 643 of the Revised Statutes of the United States. The judges of this court were divided in opinion on the question, and so certified to the Supreme Court.

The section of the Revised Statutes, under which this right was claimed by Davis, provides that "when any civil or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States, now or hereafter enacted, or against any person acting by or under authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title or authority claimed by such officer or other person under such law," the case may, by the proceeding specified in the section, be removed to the proper Federal court for trial. The Supreme Court held that the petition for a removal of the case comes within the provisions of this statute.

The question whether the statute itself is "an exercise of the constitutional power vested in Congress," Mr. Justice Strong, in giving the opinion of the court, stated in the following form: "Has the Constitution conferred upon Congress the power to authorize the removal, from a State court to a Federal court, of an indictment against a revenue officer for an alleged crime against the State, and to order its removal before trial, when it appears that a Federal question or a claim to a Federal right is raised in the case, and must be decided therein?"

This question was answered in the affirmative. The leading points in the deliverance of Mr. Justice Strong, sustaining this answer, are the following: 1. That if the fact were otherwise, the National Government, acting within the States only through its officers and agents, would have no power to protect these officers and agents against State action, and might by such action be paralyzed in its operations. 2. That Con

gress has authority to pass the necessary laws to carry into effect the judicial power of the United States. 3. That this judicial power extends to "all cases in law and equity," whether civil or criminal, arising under the Constitution, the laws of the United States, and treaties made or which shall be made under their authority." 4. That such cases arise whenever a correct decision in regard to them depends upon the construction of the Constitution or a law or treaty of the United States. 5. That Congress, by a series of acts, commencing with the Judiciary Act of 1789, and providing for the removal of cases from State to Federal courts, has expressed its legislative sense on this subject. 6. That the Supreme Court of the United States has, in several instances, affirmed the power of Congress to authorize such removals. 7. That these removals constitute no invasion of State rights, as they exist under our dual system of government; but on the contrary, that a denial of the right of the National Government to remove, to take charge of and try any case "arising under the Constitution or laws of the United States" would be "a denial of the conceded Sovereignty of that government over a subject expressly committed to it."

As to the question "whether, if the case be removable from the State court, there is auy mode and manner of proceeding prescribed by the act of Congress," Mr. Justice Strong said that there was no difficulty. "The Circuit Courts of the United States have all the appliances which are needed for the trial of any criminal case. They adopt and apply the laws of the State in civil cases, and there is no more difficulty in administering the State's criminal law. They are not foreign courts."

8. The case of Strauder v. West Virginia, 303, camo before the court by a writ of error. Strauder, who is a colored person, was indicted, convicted, and sentenced for murder, in a State court of West Virginia, and the judgment was confirmed by the Supreme Court of that State. He applied, before trial, to have his case removed to the proper Federal court, because the law of that State excluded colored persons from serving as jurors, claiming the right to removal under section 641 of the Revised Statutes of the United States. His petition was denied by the State court, and the cause was forced to trial.

The questions to be determined in this case were whether "every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color," and whether, "if he has such a right, and is denied its enjoyment by the State in which he is indicted," he may 66 cause the case to be removed into the Circuit Court of the United States." Both of these questions were answered in the affirmative; the first, mainly in the light of that clause of the Fourteenth Amendment which forbids a State to "deny to any person within its jurisdiction the equal protection of the laws," and which was held to be inconsistent with the jury law of West Virginia; the second, in view of section 641 of the Revised Statutes of the United States, providing for the removal of cases when this right is denied by any State, and also in view of sections 1977 and 1978 of the same Statutes, enumerating somo of the rights and immunities guaranteed by the Constitution, among which is "the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens."

The jury law of West Virginia, in its exclusion of colored persons from juries, because of their color, was held to be unconstitutional, and this, of course, vitiated and rendered illegal the whole proceeding against Strauder.

9. The case of Virginia v. Rives, 313, was a petition

for a mandamus to compel Judge Rives, a United States judge in Virginia, who had ordered the removal of the cases of two colored men to a Federal court, and had, by writ of habeas corpus cum causa, placed them in the custody of the United States marshal, to rescind the order and restore the prisoners to the proper State authority. The grand jury that indicted the prisoners, as also the jury summoned to try them, was composed entirely of the white race. After the trial had been entered upon, they petitioned the court for a mixed jury, composed in part of persons of their own race. This petition was rejected. They afterward applied to Judge Rives to have their cases removed to the Circuit Court of the United States for trial; and he granted the application, assuming to act under the authority of section 641 of the Revised Statutes of the United States. There was nothing in the Constitution or laws of Virginia excluding colored men from serving as jurors.

Such being tho material facts, the question before the Supreme Court was whether, upon the showing of the petition for removal in these cases, Judge Rives had, under section 641 of the Revised Statutes, authority to order such removal. This question was answered in the negative, and a mandamus was granted for the restoration of the prisoners to the State authority.

The controlling reason for this answer, 3 stated by Mr. Justice Strong, is the fact that to such a casethat is, a judicial infraction of the constitutional inhibitions, after trial or final hearing has commencedsection 641 has no applicability." The section "was not intended to reach such cases. It left them to the revisory power of the higher courts of the State, and ultimately to the review of this court." There bing nothing in the Constitution or laws of Virginia to exclude colored persons, because of their color, from serving on juries, tho proper remedy, in the event of such judicial infraction in tho process of trial, which could exist and be known only after the trial was in actual progress, is not a removal of the case to a Federal court, for which section 641 gives no authority, but an appeal to the higher courts of the State, and if the infraction be not thus corrected, then a review of the judgment by the Supreme Court or the United States by a writ of error.

Moreover, the right secured by the Fourteenth Amendment is "that, in the selection of jurors to pass upon tho life, liberty or property" of a colored man, "there shall be no exclusion of his race, and no discrimination against them because of their color." This does not necessarily imply that the jury must in every such case bo composed of colored persons, or that a part of the jury should be of this class. "A mixed jury in a particular case," said Mr. Justice Strong, "is not essential to the equal protection of the laws, and the right to it is not given by any law of Virginia, or by any Federal Statute. It is not, therefore, guaranteed by the Fourteenth Amendment, or within the purview of section 641" of the Revised Statutes of the United States. "The petition for a removal stated no facts that brought the case within the provisions of this section [641], and, consequently, no jurisdiction of the case was acquired by the Circuit Court of the United States."

10. The case of Ex parte Virginia, 339, was that of a petition from J. D. Coles, a judge of a county court of Virginia, who had been indicted in a United States District Court, and was under arrest, asking for a writ of habeas corpus and a writ of certiorari to bring up the record of the District Court, and of a similar petition from the State of Virginia, both of which petitions were regarded as presenting one case. The offense set forth in the indictment against Judge Coles was that, being charged by law with the duty of select

ing grand and petit jurors, he had excluded or failed to select any colored citizens as such jurors, and that the ground thereof was their race or color.

The Supreme Court, after affirming its own jurisdiction in the premises, proceeded to consider the merits of the case. Mr. Justice Strong, in stating the opinion of the court, remarked that the indictment and bench-warrant rest upon the Act of Congress of March 1st, 1875, the fourth section of which declares: "That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and shall be fined not more than five thousand dollars." 18 U. S. Stat. at Large, 335. The validity of this statute rests upon the Fourteenth Amendment, which declares that no State shall "deny to any person within its jurisdiction the equal protection of the laws," and that "Congress shall have power to enforce by appropriate legislation the provisions of this article." The purpose of the amendment was to put the colored race, as to civil rights, on a "perfect equality with all other persons within the jurisdiction of the States,' and this includes "an impartial jury trial by jurors indifferently selected or chosen without discrimination against such jurors because of their color." Congress has power, bý appropriate legislation, to make this purpose effective."

"Such legislation," said Mr. Justice Strong, "must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which are intended to be secured. Such is the Act of March 1st, 1875, and we think it was fully authorized by the Constitution." The fact that the person upon whom the law acts holds an office under a State, and claims to act for the State, does not relieve him "from obligation to obey the Constitution of the United States, or take away the power of Congress to punish his disobedience." Moreover, the act of Judge Coles, in selecting jurors, was not a judicial act, but "merely a ministerial act," and even if the act were judicial, he would be entitled to no immunity on this ground, since, as alleged in the indictment, "he acted outside of his authority, and in direct violation of the spirit of the State statute," which statute gave him no authority for the exclusion, in selecting jurors, of "all colored men merely because they were colored."

Mr. Justice Strong said in conclusion: "Upon the whole, as we are of opinion that the act of Congress, upon which the indictment against the petitioner was founded, is constitutional, and that he is correctly held to answer it, and as, therefore, no object would be secured by issuing a writ of habeas corpus, the petitions are denied."

These ten cases, especially the last six, present a body of very important decisions in the construction and application of the Constitution of the United States. Seldom has the Supreme Court had occasion in a single term to pass upon so many questions of this elementary character. Its uniform practice is to express opinions on constitutional points only as they arise in pending cases, and even then, so far only as may be necessary in determining these cases. The validity of the Federal election laws, the right of the National Government to protect its own officers and agents against State action, the interpretation of the Fourteenth Amendment in its guaranty of civil rights, and the power of Congress legislatively to enforce this guaranty form a cluster of questions, not only significant in themselves, but also significant by reason of the con

flicts of opinion which have existed in regard to them. The country now knows what the highest judicial tribunal of the land thinks in respect to these questions. Its exposition of law is alike final and conclusive.

DEGREE OF CARE REQUIRED FROM TRUSTEES OF SAVINGS BANKS.

NEW YORK COURT OF APPEALS, SEPTEMBER 21, 1880.

HUN, Receiver, v. CARY.

The trustees of a savings bank are bound to exercise, in the management of the affairs of the bank, ordinary care and prudence; the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs, and it is a breach of duty in trustees not to bestow such care and prudence. The trustees cannot set up as a defense for neglect, that they did not possess ordinary skill and judgment, as they by accepting the position of trustees undertake that they possess such a degree of skill and judgment.

A savings bank was incorporated in 1867, and up to 1875, when a receiver was appointed, did business in leased premises. The deposits in the bank at no time exceeded about $70,000, and during each year but one the expenses of the bank, including interest to depositors, exceeded its income. At a time when the bank was substantially insolvent, the trustees purchased a lot costing $29,000, on which a building for the use of the bank, costing $27,000, was erected. In 1875 a receiver was appointed, and this building and lot, subject to a mortgage, and other assets, producing only about $1,000, constituted the whole property of the bank and the lot and building were afterward swept away by the mortgage. In an action by the receiver against the trustees for the loss, held, that a jury were justifled in finding that the trustees failed in exercising the prudence which the law requires and were liable for the loss sustained. Held, also, that the receiver of the bank might maintain the action, and that the same was triable at the Circuit before a jury.

Held, also, that all the trustees need not be joined. Held, also, that a trustee was not relieved from liability by a discharge in bankruptcy.

ACTION by Marcus T. Hun, as receiver of the Cen

tral Park Savings Bank, against John G. Cary and others, to recover damages for the loss alleged to be caused to the bank by the misconduct of defendants, who were its trustees. The opinion states the case. From a judgment in favor of plaintiff as to certain of the defeudants, such defendants appealed. From an order of the General Term, granting a new trial as to Smith, one of the defendants, plaintiff appealed.

F. C. Barlow, for plaintiff.

E. Ellery Anderson, for defendants.
A. Wakeman, for defendant Smith.

EARL, J. This action was brought by the receiver of the Central Park Savings Bank of the city of New York against the defendants, who were trustees of the bank, to recover damages which, it is alleged, they caused the bank by their misconduct as such trustees.

The first question to be considered is the measure of fidelity, care and diligence, which such trustees owe to such a bank and its depositors. The relation existing between the corporation and its trustees is mainly that of principal and agent; and the relation between the trustees and the depositors is similar to that of trustee and cestui que trust. The trustees are bound to observe the limits placed upon their powers in the charter, and if they transcend such limits and cause damage, they incur liability. If they act fraudulently or do a willful wrong, it is not doubted that they may be held for all the damage they cause to the bank or its depositors. But if they act in good faith within the limits of powers conferred, using proper prudence and diligence, they are not responsible for mere mistakes or