Flint v. Board of Aldermen of Boston. FLINT V. BOARD OF ALDERMEN OF BOSTON. (99 Massachusetts, 141.) Taxation of shares in a National bank situated in another State. Congress has the constitutional right to establish National banks in any State and to provide that the shares of their capital stock shall be exempt from taxation by other States. Under section 41 of the National Banking Act of 1864, it is unlawful for a State to impose a tax on shares owned by an inhabitant thereof in the capital stock of a National Bank located in another State. * PETIT ETITION for a writ of certiorari to the Aldermen of Boston to reverse their action in refusing to abate a tax assessed to the petitioner, a resident of Boston, on shares of stock in a National bank located in New York. C. B. Goodrich and L. J. Austin, for petitioner. C. H. Hill and J. P. Healy, for respondents. HOAR, J. The petitioner is a resident of the city of Boston and has been assessed in that city upon the shares owned by him in a National banking association located in the city of New York. We think the case must be governed by the principles in the decision in Austin v. Aldermen of Boston, 14 Allen, 359. The National banks are artificial bodies created by the laws of the United States. *The material portion of U. S. Stat. of 1864, ch. 106, § 41, is as follows: "Provided, that nothing in this act shall be construed to prevent all the shares in any of the said associations, held by any person or body corporate, from being included in the valuation of the personal property of such person or corporation in the assessment of taxes imposed by or under State authority at the place where such bank is located, and not elsewhere, but not at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State. Provided, further, 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." Flint v. Board of Aldermen of Boston. The power of Congress to establish them arises from their being suitable instruments for the performance of functions pertaining to the National government. As such instruments, they are not subject to taxation under State authority, and although the shares in their capital stock are so far distinct from the corporations themselves as to be the subject of State taxation if such taxation is not restricted or prohibited by Congress, yet it has been expressly decided by the Supreme Court of the United States that they are "a subject-matter over which Congress and the States may exercise a concurrent power, but from the exercise of which Congress, by reason of its paramount authority, may exclude the States." Van Allen v. Assessors, 3 Wall. 573 (ante, p. 1). In that case it was held that a tax on shares in National banks was invalid, which was not levied in conformity with the stipulations in the proviso of the U. S. Stat. of 1864, ch. 106, § 41. By the construction which was given to that proviso by this court in Austin v. Aldermen of Boston, Congress has thereby prohibited the assessment of taxes by any State upon the shares of a National bank established in any other State. The purpose may have been to attract banking capital, and induce the formation of National banks within those States where the rate of taxation is low. But whatever may have been the design or motive, we can have no doubt that it is within the constitutional power of Congress to establish a National bank in any State, and to provide that its shares shall have such a local nature as to be exempt from taxation by other States; and that this power has been exercised in the present instance. Abbott v. Bangor, 54 Me. 540. Certiorari to issue. Commonwealth v. Felton. COMMONWEALTH V. FELTON. (101 Massachusetts, 204.) Embezzlement by officers of National banks. Jurisdiction of offense. A State court has no jurisdiction of the crime of embezzlement by an officer of a National bank situate within the State; and since the National Bank ing Act makes such embezzlement a misdemeanor, an accessory thereto cannot be indicted in a State court under a statute making an embezzlement, or the being accessory thereto, a felony.* INDIC NDICTMENT under the statute of Massachusetts charging that one Martin, as cashier of the National Hide and Leather Bank, embezzled the funds of the bank, and that the defendant, Felton, was an accessory thereto before the fact. The defendants filed separate pleas to the jurisdiction, alleging that the United States courts had exclusive cognizance of the offenses charged in the indictment, as against both defendants, and that they both had, before the pendency of this indictment, been indicted in the United States Circuit Court. In the Superior Court, AMES, C. J., allowed Martin's plea, but overruled the plea of Felton, who thereupon pleaded nola contendere, and alleged exceptions. A. A. Ramsey, for Felton. C. Allen, Attorney-General (J. C. Davis, Assistant AttorneyGeneral, with him), for the Commonwealth. AMES, J. The indictment against this defendant charges him with a crime of so grave a character, that it ought to be made a matter of judicial investigation somewhere, upon the facts and merits. But as he is indicted for the same transaction in two different jurisdictions, namely, in the Circuit Court of the United States and in the Superior Court of this Commonwealth, it becomes necessary to decide to which, if to either, of these two jurisdictions he is properly amenable; or, to state the question with more strict accuracy, whether he is liable to be proceeded against under the laws of this Commonwealth. *See Commonwealth v. Barry, post, and note. Commonwealth v. Felton. The statutes of this Commonwealth (Gen. Stats., ch. 161, § 89) have made full and ample provision for the case of the embezzlement or fraudulent appropriation by any cashier or other officer of any incorporated bank, of any of the funds of such bank. This description of crime, by our laws, is a felony, and is punishable by imprisonment in the State prison. It has recently been decided that the language of this statute is broad enough to include banking corporations organized under the laws of the United States and located in Massachusetts as well as like corporations created by the laws of this State. Commonwealth v. Tenney, 97 Mass. 50 (ante, p. 568). So far as the case depends on our own legislation, and if nothing has been done to impair the jurisdiction of our own tribunals in such a case, there can be no doubt that Martin, the cashier of the Hide and Leather National Bank, could well be indicted, and tried, in the Superior Court for embezzlement of the funds of the bank, and this defendant could also in like manner be indicted jointly with him, or separately, as accessory before the fact to the same embezzlement. But the act of Congress (U. S. Stat. 1864, ch. 106) from which the National banks derive their existence and organization, contains a section (§ 39) which also makes full and ample provision for the punishment of the crime of embezzlement and fraudulent appropriation of any funds of a National bank by any cashier, etc., of such bank. It exactly covers the crime imputed to Martin. It declares that description of crime to be a misdemeanor, and makes it punishable by imprisonment in the State prison. It makes no provision or reservation for its prosecution and punishment by any State authority, but makes it cognizable under the authority of the United States. By the terms of the Judiciary Act (U. S. Stat. 1789, ch. 20, § 11), the courts of the United States are vested with the exclusive cognizance of all crimes that are punishable by the act of Congress, except where the act of Congress makes other provisions, and it would therefore seem that the crime of embezzlement by a cashier of a National bank located within our territory is taken out of the jurisdiction of our courts. This is at least strongly implied in Commonwealth v. Tenney, and in fact is conceded by the learned Attorney-General in the argument of this case. See also Commonwealth v. Fuller, 8 Metc. 313. If Martin, then, as a bank officer, is not amenable in our courts for embezzlement from the bank, can Felton be indicted in the Crocker v. Marine National Bank of New York. same courts as an accessory before the fact, for the same embezzlement? The technical and somewhat narrow rule of the common law on the subject of principal and accessory has been very extensively and reasonably enlarged by modern legislation. "Whoever counsels, hires, or otherwise procures a felony to be committed, may be indicted and convicted as an accessory before the fact, either with the principal felon, or after his conviction; or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been convicted, or is not amenable to justice. Gen. Stats., ch. 168, § 4. But the difficulty in the way of holding the defendant upon the present indictment is, that the act of Congress has taken the crime of the principal out of our jurisdiction. Our courts cannot deal with him upon that charge. By the terms of the same act, which in this matter is the controlling authority, the crime of the principal has ceased to be a felony, and has become a misdemeanor only a description of a crime, in which there are no accessories. A defaulting cashier of a National bank, however flagrant his embezzlement may be, so far from being a principal felon, is not in legal strictness a felon at all; and it would seem to be impossible, therefore, to say that Felton, even if he in fact counseled, hired, or otherwise procured the crime. to be committed, can be said to be thereby rendered accessory to a felony, within the terms of the above-cited statute. Gen. Stats., ch. 168, § 4. The effect of our decision may very probably be to leave what it charged as a great crime to go wholly unpunished and untried; but that is a result which we have no power to prevent. Exceptions sustained. CROCKER V. MARINE NATIONAL BANK OF NEW YORK. (101 Massachusetts, 240.) National bank- Actions against in State courts. A banking association organized under act of Congress, of 1864, chapter 106, can be sued in a State court, only in the city or county where it is located.* HE facts are stated in the opinion. THE * See Cooke v. State National Bank, post, and note. |