City Nat. B'k of Paducah v. City of Paducah and Morgan. moneyed capital in the hands of individual citizens of such State: Provided, That the tax so imposed under the laws of any State, upon the shares of any of the associations authorized by this act, shall not exceed the rate imposed upon the shares in any of the banks organized under authority of the State where such association is located: Provided, also, That nothing in this act shall exempt the real estate of associations from either State, county or municipal taxes, to the same extent, according to its value, as other real estate is taxed." In 1868 a short act was passed (15 Statutes, 34) not amending, but explanatory of the 41st section, entitled, "An Act in Relation to Taxing Shares in National Banks." The language is as follows: "That the words 'place where the bank is located, and not elsewhere,' in section 41, etc., shall be construed and held to mean the State within which the bank is located, and the Legislature of each State may determine and direct the manner and place of taxing all the shares of National banks located within said State, subject to the restriction 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: And provided always, That the shares of any National bank owned by non-residents of any State, shall be taxed in the city or town where said bank is located, and not elsewhere." The intent of Congress was manifest. A difference of opinion had arisen with regard to the meaning of the words "place where the bank is located," and in some States the assessing officers were taxing the shares in the town or city where the bank was located, notwithstanding that the owner lived in a different town or city in the same State. To define the meaning of these words was the sole object of the act of 1868. This is evident, not only from the language of the act itself, but is an actual fact (though possibly it is not a legitimate argument here) as appears from the remarks of the chairman City Nat. B'k of Paducah v. City of Paducah and Morgan. of the committee which reported the bill. (See Congressional Globe, 2 Session, 40th Congress, p. 921.) The two provisions in the original act were neither of them alluded to in the act of 1868, although out of abundant caution the words "the taxation shall not be at a greater rate than is assessed upon other moneyed capital" were repeated, and an entirely new proviso added, that the shares of non-residents should be taxed in the city where the bank was located. There is certainly no express repeal of the two provisos in the original act, and nothing from which an implication of repeal can arise. can arise. Were it not for the Revised Statutes, I should hold both the provisos in the act of 1864 to be still in force. I am aware that in the case of Lyonberger v. Rouse, 9 Wall. 468, Mr. Justice DAVIS indicates an opinion that under the act of 1868 the power of State taxation was subject only to the restriction that "the taxation shall not be at a greater rate than is assessed upon other moneyed capital;" but the point does not seem to have been argued, and was unnecessary to the decision of the case. In the revision, the second proviso, that the real estate of the bank should remain subject to taxation, is retained; while the first, limiting the tax expressly to the rate imposed upon the shares of State banks, was omitted. If there were anything in the act of 1868 which could be construed as a repeal of the first proviso, I see no reason why it should not operate also as a repeal of the second; but, as observed before, I think the two acts should have been construed harmoniously, and the restriction in the act of 1868 should not have been regarded as exclusive as those in the former act, while the omission of the first proviso in the Revised Statutes undoubtedly operates, under section 5596, as a repeal of such proviso; yet considering the manner in which the repeal was effected, I think no intent can be inferred on the part of Congress, thereby affirmatively to permit States to subject the shares of National City Nat. B'k of Paducah v. City of Paducah and Morgan. banks to a greater rate of taxation than they impose upon State banks, if any such intent could ever arise from the repeal of a prohibitory clause. So far as the question arising in this case is concerned, section 5219 should be construed precisely as if no prior legislation on the same subject had been had. The ordinance of Paducah nominally imposed a tax of $1.05 upon all banks within its limits, State as well as National, but as there is but one State bank in the city, viz., the Commercial Bank, which is exempt from taxation beyond fifty cents per share, and a possible tax of fifty cents on each hundred dollars of its contingent fund, which seems never to have been collected, the tax is really applicable only to the three National banks, the aggregate capital of which is less than the capital of the Commercial Bank. It is true an attempt was made to assess the same tax upon the Commercial Bank, but an injunction against its collection appears to have been granted and perpetuated by the State Court. I feel authorized, then, to treat it as exempt from this tax. That the Commercial Bank is not exceptionally favored in this particular, is shown by the certificate of the Auditor of Public Accounts of the State, which is in evidence and exhibits a complete list of all banks doing business under the laws of Kentucky. They are fifty-three in number, having an aggregate capital of $12,473,641.50, and each pays the State a tax of fifty cents on every hundred dollars of its Capital, in lieu of all other taxes, though there are slight variations in the different charters. If there are any State banks, the taxation of which is not regulated by their charters, they fall within the general provision of chapter 92, article 2, section 1, "on bank stock, or stock in any moneyed corporation of loan or discount, fifty cents on each share thereof, equal to one hundred dollars." The result is the same in either case, a few apparent exceptions being set forth in the City Nat. B'k of Paducah v. City of Paducah and Morgan. answer; but practically the entire banking capital of the State is subject to a tax of fifty cents per share on one hundred dollars, in lieu of all other taxes. If the city of Paducah may tax National banks at $1.05 per share for the year 1875, it may increase the tax at any time to $2.50, the amount authorized by the Legislature, and to as much greater an amount as the Legislature may hereafter see fit to authorize. (It was conceded upon the argument that the tax for 1877 had been increased to $1.40.) Indeed, the Legislature may authorize like taxation by every municipality in the State, while the State banks under their special charter will escape the burden altogether. Certainly here is a large discrimination in favor of State banks. I am not unmindful in this connection of the case of Lyonberger v. Rouse, above cited, nor of the case of Hepburn v. School Directors, 23 Wall. 480, in which it was held that the exemption of small amounts of moneyed capital, in particular cases, would not invalidate the tax, if the great body of moneyed capital was subjected to it. In both these cases, however, the amount exempted was small in proportion to the aggregate amount of moneyed capital, and the great mass of moneyed property was subjected to the same tax levied upon the shares of National banks. It is true that the fifty-three State banks in Kentucky are not chartered by general law, but by special acts in each case; but this seems to me to make no difference. The fact remains that practically the entire banking capital of the State pays a tax of fifty cents in lieu of all other taxes, even upon its real estate. The law will look, not at the manner in which the tax is imposed, but at the result of the system. A like answer may be made to the argument that many of these State charters have expired, and that in renewing them the power to increase the taxation is reserved. This power never seems to have been exercised. City Nat. B'k of Paducah v. City of Paducah and Morgan. It is insisted, however, that although the legislation in question may discriminate in favor of State banks, there is no discrimination against National banks, inasmuch as "all other moneyed capital, in the hands of individuals," except shares in State banks, pays the same tax. Under the general laws of Kentucky (and the charter of Paducah adopts the same rule of assessment) property subject to taxation is listed in five classes: 1. Real estate; 2, horses, mules and the like; 3, cattle; 4, watches, plate, clocks, pianos, vehicles and harnesses; 5, "the assessor after having taken the lists of all property required to be taken listed as above, shall require each person on oath to fix the amount he or she is worth from all other sources on the day to which said list relates, after taking out his or her indebtedness from said amount; and the said assessor shall take from the said amount the sum of one hundred dollars, and list the balance for taxation." This section includes all property not exempt or previously mentioned, such as spirituous liquors, the produce of mines, farms, forests, manufactures, notes, accounts, bonds, bills of exchange and choses in action, debts and demands of every kind, but does not include bank stock. The whole amount of this fifth class, in which "other moneyed capital" is included, in the city of Paducah, is shown by the assessor's books to be in all $303,865. From this must be deducted all which is not moneyed capital. The residue, consisting of money on deposit, notes, bonds, mortgages, judgments and other choses in action, is the only "other moneyed capital" and the amount of this it is impossible to ascertain, as it is nowhere listed or taxed as such. A liberal estimate would probably not place it over $200,000. Upon this the tax of $1.05 is imposed, subject, however, to a deduction of all the indebtedness of the tax-payer. If, then, the property of the tax-payer consists of National bank stocks, pur |