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Vol. II.] CLEVELAND, COLUMBUS, AND CINCINNATI R. R. Co. v. CRAWFORD. (No. 5. no error in refusing to give the instruction asked for by the defendant below.

It is not true, as matter of law or fact, that the plaintiff's intestate was guilty of negligence which would prevent a recovery, if under any circumstances, without signs and signals, he omitted to use his eyes and ears to the extent of his opportunity, to see, hear, and avoid danger.

In the first place, if the use of his eyes and ears to the extent of his opportunity would not have prevented the collision, he was not guilty of contributory negligence.

In the second place, if the circumstances were such as would have excused a person of ordinary prudence from looking or listening for the approaching train, he was not guilty of negligence at all.

In the third place, the qualifying words found in the request - to wit, " to the extent of his opportunity” – do not relieve the proposition from objection. It was claimed on the trial, and the testimony tended to prove the fact, that the deceased had no opportunity to see or hear the train until it was too late to avoid the collision. If the jury had so found the fact to be, the verdict should have been for the defendant, according to the request, although the exercise of due care on the part of the intestate "to the extent of his opportunity," could not have avoided the consequences of the defendant's negligence. This, as we above stated, is not the law.

4. The original actions were prosecuted under the statute for the benefit of the next of kin of the intestates. The next of kin were their four children, three of whom were with their parents in the wagon at the time of the collision. On the trial, defendant requested the court to charge the jury that if the persons for whose benefit the actions were brought were guilty of a want of ordinary care which contributed to the injury, a recovery could not be had for their benefit. This request was properly refused ; because, first, the statute gives the right of action to the personal representative upon the same conditions that would have entitled the party injured to an action if death had not ensued. If Mr. and Mrs. Sipes had not died, and had not been guilty of contributory negligence, their right of action for the negligence of the defendant would not have been defeated by reason of the negligence of third persons, although such persons may have stood to them in the relation of next of kin.

Again, the amount recovered in such cases is a gross sum, which the statute directs to be distributed to the next of kin, in the proportions provided by law in relation to the distribution of personal estates. If contributory negligence on the part of some of the next of kin would defeat a recovery as to them, it would also defeat a recovery for the benefit of those who in nowise contributed to the injury.

We find no error in these records for which the judgments, or either of them, should be reversed.

Judgment affirmed. WHITE and REX, JJ., concurred.

Day, C. J., and WELCH, J., concurred in the syllabus, but dissented from the judgment, on the ground that the verdicts were against the evidence.

Sllision: the persons forary care which This requerit on to the period

[No. 5.

Vol. II.)

CHESAPEAKE BANK v. First NATIONAL BANK.

COURT OF APPEALS OF MARYLAND.

(To appear in 40 Md.)

NATIONAL BANK. - ATTACHMENT ON WARRANT ISSUED BY STATE COURT

AGAINST NATIONAL BANK, ILLEGAL. - VALIDITY OF SEC. 2 OF ACT OF MARCH 3, '73.

CHESAPEAKE BANK v. FIRST NATIONAL BANK.

An attachment on warrant issued by a state court to affect the funds of a national bank

is illegal and void, being in violation of section 57 of the Act of Congress, approved June 3, 1864, as amended by section 2 of the Act of Congress, approved March 3, 1873,- the latter section providing, “ That no attachment, injunction, or execution shall be issued against such (banking) association or its property, before final judgment in any such suit, action, or proceeding in any state, county, or municipal court." The second section of the Act of Congress, approved March 3, 1873, amending section 57 of the Act of Congress, approved June 3, 1864, is constitutional and valid, being a provision to promote the efficiency of the national banks in performing the functions by which they were designed to serve the government, and to protect them not only against interfering state legislation, but also against suits or proceedings in state courts, by which their efficiency would be impaired.

APPEAL from the superior court of Baltimore city.
The case is stated in the opinion of the court.

The cause was argued before Bartol, C. J., Miller, Alvey, and Robinson, J.

George H. Williams, for the appellant. While it is not denied that Congress has full power to charter banks as and for instrumentalities of the government, and to prevent state sovereignties from taxing them or otherwise interfering with their existence, yet it is not within the power of Congress to clothe them, as to their contracts and dealings with the world, with any special immunities and privileges exempting them in their said trade and intercourse with others from the laws and remedies applicable in like cases between other citizens. National Bank v. Commonwealth, 9 Wallace, 353.

The power to create these banks is justified as an act of constructive power; it is not pretended there is any express power given, but as where express powers are given, e. g. to lay and collect taxes, imports, &c., they are restricted to uniformity, they cannot create a favored contracting class in society not subject to the uniform rights and remedies as between other citizens of the Union. The order of the court below quashing the attachment should be reversed and a procedendo awarded.

A. Stirling, Jr., contra. The 57th section of the Act of 1864, and the 2d section of the Act of 1873, are constitutional.

The appellant admits the constitutionality of the national banking act generally, but contends that the sections above mentioned, or at least section 2 of 1873, is unconstitutional, as giving the associations organized under the Act of 1864 privileges or immunities different from those of citizens generally in the states where their business is carried on.

If the constitutionality of the acts of 1864 and 1873, generally, be conceded, then under all the principles governing the construction of the

Vol. II.)

CHESAPEAKE Bank v. First National BANK.

[No. 5.

powers of Congress, the provisions of the 57th section of the Act of 1864, and the 2d section of the Act of 1873, are on their face evidently appropriate and necessary, to carry out the powers which are adınitted to justify the law generally ; and not only this, but are wise and beneficial, and under no principle laid down by the court of appeals or the supreme court, can they be held unconstitutional. M'Culloch v. Maryland, 4 Wheat. 316; Fletcher v. Peck, 6 Cranch, 87; Livingstone v. Moore, 7 Peters, 469; National Bank v. Commonwealth, 9 Wall. 353; Veazie Bank v. Fenno, 8 Ib. 533; Hepburn v. Griswold, Ib. 603; State v. Buchanan, 5 H. & J. 362; Mayor, fc. v. Board of Police, 15 Md. 376. MILLER, J., delivered the opinion of the court.

The appellant on the 18th of September, 1873, caused an attachment on warrant to be issued out of the superior court of Baltimore city to affect the property and credits of the First National Bank of the City of Washington, District of Columbia, as a non-resident debtor, which was laid in the hands of the First National Bank of Baltimore, as garnishee. In October following, the garnishee filed a motion to quash for reasons alleged, and from the judgment of the court quashing the writ this appeal is taken. It is conceded the decision of the superior court was based upon the first reason stated in the motion, as follows:

That said First National Bank of Washington was, before said attachment and at the time of the issue thereof, and still is an association for the purpose of carrying on the business of banking, organized duly under the Act of Congress of June 3, 1864, and that by the 2d section of the Act of Congress, approved March 3, 1873, it is enacted that the 57th section of the first mentioned act be amended by adding thereto the following : “ That no attachment, injunction, or execution shall be issued against such association or its property before final judgment in any such suit, action, or proceeding in any state, county, or municipal court,” and that by the force of said section of said acts, the said attachment is illegal and void.

We shall not stop to inquire what is the true construction of the original 57th section of the Act of 1864, because it is clear the case before us is embraced by the terms of the amendment thereto made by the Act of 1873. The constitutionality of the national banking acts is admitted, their purpose being, as expressed in the title to the original Act of 1864, “ To provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof ;.' but it is insisted these particular provisions or features of them are unconstitutional and void. The argument is that it is not within the power of Congress to clothe these banking associations, as to their contracts and dealings with the world, with any special immunities and privileges exempting them in their trade and intercourse with others, from the laws and remedies applicable in like cases to other citizens. But the power to create these banks as instrumentalities of the government, being, as it confessedly is, within the rightful powers of Congress, we cannot say that provisions like these, defining in what tribunals they shall be sued and to what suits or actions they shall be subjected, are not appropriate and necessary to carry out this admitted power. It must plainly appear that such provisions are inappropriate and unnecessary for this purpose, in

VOL. II.

15

Vol. II.)

(No. 5.

BAILEY v. CLARK.

order to justify a court in declaring that Congress has transcended its authority in enacting them. In our opinion Congress has the power to make any provisions which tend to promote the efficiency of these banks in performing the functions by which they were designed to serve the government, and to protect them, not only against interfering state legislation, but also against suits or proceedings in state courts by which that efficiency would be impaired. We are unable to perceive that the provisions here assailed are not of that character, and therefore cannot pronounce them void.

Judgment affirmed.

SUPREME COURT OF THE UNITED STATES.

[OCTOBER, 1874.]

INTERNAL REVENUE. — CONSTRUCTION OF THE WORD “CAPITAL” AS

USED IN § 110 OF THE ACT OF JULY 13, 1866.

BAILEY v. CLARK.

The term “ capital,” employed by a banker in the business of banking, in the 110th

section of the revenue act of July 13, 1866, does not include moneys borrowed by him from time to time temporarily in the ordinary course of his business. It applies only to the property or noneys of the banker set apart from other uses and permanently invested in the business.

MR. JUSTICE FIELD delivered the opinion of the court.

The one hundred and tenth section of the revenue act of the United States, as amended on the thirteenth of July, 1866, 14 Stat. at Large, 136, enacts, “ that there shall be levied, collected, and paid, a tax of one twenty-fourth of one per centum each month .... upon the capital of any bank, association, company, or corporation, and on the capital employed by any person in the business of banking beyond the average amount invested in United States bonds.” And the seventy-ninth section of the same act as amended declares, “ that every incorporated or other bank, and every person, firm, or company having a place of business where credits are opened by the deposit or collection of money or currency, subject to be paid or remitted upon draft, check, or order; or where money is advanced or loaned on stocks, bonds, bullion, bills of exchange, or promissory notes ; or where stocks, bonds, bullion, bills of exchange, or promissory notes are received for discount or for sale, shall be regarded as a bank or as a banker.” 14 Stat. at Large, 115.

During the years 1869 and 1870, the plaintiffs were bankers within the meaning of this statute, doing business in the city of New York, under the name of Clark, Dodge & Company; and at various times between the first of April, 1869, and the first of February, 1870, they made returns, as required by law, to the assessor of internal revenue for the district, of the amount of their fixed .capital employed in banking, and of the amount of moneys deposited with them by their customers. The

Vol. JI.)

BAILEY v. CLARK.

· (No. 5.

was at the feed the paymene plaintiffs from the decision

assessor required more than this : he insisted, against the objection of the plaintiffs, that all moneys borrowed by them from time to time, and temporarily in the ordinary course of their business, formed a part of their capital employed in the business of banking, and were subject to the tax imposed upon capital, under the section cited. He accordingly assessed a tax upon the several amounts thus borrowed within the dates mentioned, as part of the capital of the company.

The defendant was at the time collector of internal revenue in the district, and as such officer enforced the payment of the taxes thus assessed, amounting to over six thousand dollars. The plaintiffs protested at the time against the legality of the assessment, and appealed from the decision of the assessor to the commissioner of internal revenue. Failing to obtain any rescission of the assessment or restitution of the moneys paid, they brought the present action for their recovery.

The action was tried by the court without the intervention of a jury, by stipulation of the parties, under the recent act of Congress. The court found the facts we have stated, but with greater fulness of detail, and held that the moneys thus temporarily borrowed by the plaintiffs in the ordinary course of their business was not capital of the company employed in the business of banking, and was not, therefore, liable to assessment as part of such capital; and that the assessment and collection of the tax was, therefore, illegal and unauthorized. The court accordingly gave judgment for the plaintiffs. To review that judgment, the case is brought here on writ of error.

As appears from this statement of the case the only question for determination relates to the meaning to be given to the term capital in the one hundred and tenth section of the revenue act. The term is not there used in any technical sense, but in its natural and ordinary signification. And it is capital not merely of individuals, but of corporations and associations, which is subject to the tax in question. When used with respect to the property of a corporation or association, the term has a settled meaning ; it applies only to the property or means contributed by the stockholders as the fund or basis for the business or enterprise for which the corporation or association was formed. As to them, the term does not embrace temporary loans, though the moneys borrowed be directly appropriated in their business or undertakings. And when used with respect to the property of individuals in any particular business, the term has substantially the same import; it then means the property taken from other investments or uses and set apart for and invested in the special business, and in the increase, proceeds, or earnings of which property beyond expenditures incurred in its use consists the profits made in the business. It does not, any more than when used with respect to corporations, embrace temporary loans made in the regular course of business. As very justly observed by the circuit judge, “it would not satisfy the demands of common honesty if a man engaged in business of any kind, being asked the amount of capital employed in his business, should include in his reply all the sums which, in the conduct of his business, he had borrowed and had not yet repaid.”

There is no difference in the business of banking as conducted by indi. viduals from the business as conducted by corporations, which would

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