meyer, 113 U. S.. ·641, 5 Sup. au Rep. 566, and repeated in Rail?"oad Co. v. Whitney, 132 U. S. 364,10 Sup. Ct., Rep. 112: "It is not coneei vable that congress to place these parties [homestead and pre-emption claimants, on the 0ne hand, and the railway company, on the other] as contestants for the land, with the right in each to reqUire proof from the other of complete performance of its obligations. I.east of all is it to be supposed that it was intended to raise up, in antagonism to 1111 the actual settlers on the soil whom it had invited to its occupation, .this great corporation, with an interest ,to defeat their claim, and to come between them and the government as to the performance of their obligations."
Lot judgment be entered in favor of defendant for his costs.
FIRST .NAT. BANK 'D. LINDSAY et
al., Assessor. Term, 18111.)
, (P1rcuit Court, w. D. Louisiana. L TAXATION-CONSTITUTIONAL LAW-DISCRIMINATIONS.
2.
The article 'of' the state constitution which provides that all property shall be assessed at a uniform rate is violated when it is shown that assessing officers assess in any coDsiderable amount property at one-third or one-half, and other property at two-thirds, ofits cash value. National banks, like any other tall;-payer against whoIll are lIlade, are entitJ.ed to the protection of article cited. '
SAME-NATIONAL BANK SHARES.
National bl'lnk shares are tuable,under sectiOn 5219, Rev. at. U. S., as other personal property, against theshareholdershprovided "that the tuation shall nC?t b.e at a greater rate than is assessed upon ot er moneyed capital in the hands of' mdlvidual cititens."
8.
Tbat statute the state to tall; such shares under named conditions. Without such permission, a bank could not be taxed; but the state constitution, aside from such conditions, fUlly protects plaintiff from unequal taxation. SAME-EXEMPTIONS. . When section 5219 is substantially observed, such bankshares are not exempt from ta:s:ation, though the bulk 01 the bank's moneyed capital may be held in federal or state bonds ; that is, the shares ;may be valued for taxation as they are rated or related to the whole of the bank's moneyed capital. SAME-DISCRIMINATION--AsSEBBMEMT.
SAME.
5.
When jt,illshown that the assessing officers fail, refuse, or omit substantially to subjl at the. ml;lDeyed capital of individual citizens not exempted by state lliws as far as practi'Cable'to uniform taxation, or when it is shown that, as a matter of fact, such officera assess only", few tax-payers on such capital, and those only for comparatively. trifling amountslleaving several hundred thousands of such values not SUbjected to taxation. then t' follows that the enforcement of the litate tax-law. operate practically 80 as to impose'lIoequal and oppressively on such banks as have their moneyed capital subjected to taxation, and said federal' statute and article of the constitution are violated. Held that, under such factS as show a discrimiQation against such banks, t.he shares sbould not be a1itheir com1/lt'l'cial value, but their value for taxation should be fixed, after taxing or deducting 'from the banks' moneyed capit.al all federal securities wbich IIlay be inoludedin ,tbe mass of the !:lanks' moneyed In Jixingthis Value, the, B1;Iares, after sucb reduction, should be rated or related to the remaining amount of capital. . ,. ' , , . ' ' .
6.
In applying section 2i, under whicll. national bank shares are taxed, (lnd section 2& of 'the revenpEl act of 1&;8, under 'moneyed 'capital in the hands of Individual" , citizelis 'is taxed; it appears, that an inequality and· discrimination is particularly" wrought and plaintiff to ade,Ql1ate relief. Held, it' It be shown that the, assessing omcers wronl'(fully. or throUgh, graM neg,iigence,'fllJIedl refused, oromit.ted to subject moneyed capital, lmown by SQch Q1Iicara ,
S..i.ME-ANNULLINGAsBESSMENT.
-
--
,
620
ODERAL
REPORTER.
vol. 45·.
to be iilthe hands of individual citizens of the taxing district in any large sum,-· say several hundred thousand dollars of such for any such cause, they, as a matter of fact, subjected only a trifling amount of such values to taxation, the . plaintiff is entitled to relief to the extent of having the whole assessment as against the 'bank annulled. (Syllabus by the Oourt.)
At Lll.w. A. H. Leonard, for plaintiff. A. D. Land and J. H. Shepherd, for defendants.
BOARMAN,J., (charging jury.) The plaintiff, a national bank, sues to have the assessment and taxation made by defendants against the bank shares entirely annulled or adequately reduced. The moneyed capital of the bank is $200,000, divided into 2,000 shares, at $100 a share. Said capital is shown tQ be made up largely of United States and state bonds, and other rights and credits> Besides, the bank, for itself, owns some property, which, if taxable, should be listed and assessed against the bank. Asthe case presents itself to us, after hearing the pleadings and evidence, it may be well, for the purpose of analysis and consideration of the suit, to divide our consideration of the issuable facts under two !:leadings or questions: (1) The bank complairts that, considering the shares as the law would consider any other personal property of the shareholders, the valuation put upon the shares for taxation imposes a greater, an ·unequal, and more burthensome taxation than is in fact borne thrpughout the parish and state by others owning personal and real property. That said shares are assessed at two-thirds of their cash commercial value, when, as a matter of fact, other property listed for taxation is assessed at not more than one-third or one-halfof such value. Further, the tax is unequal and oppressively burthensome, becausfl a large sum, 8:lIlOUnting to several hundred thousand dollars, consisting of moneyed capital, such as rights, credits,. open accounts, money loaned at interest, mortgages, was not listed for tl\)l:ation in the parish at all, because of the willful omission or gross negligence of the assessing officers. (2) That the tax-laws of the state in their application; enforcement, and effect, and the acts of omission and commission on the part of the police jury assessor, acting under their official authority, violates, to the injury of plaintiffs, the constitution of the state, as well as the conditions under congress permitted the states to tax the shares of national banks, iii this: that, under the state their enforcement by the assessiIlg officers, the assessment and taxation of such shares is at a greater ra;teof, taxation than the tax assessed and collected upon the moneyed in the hands of corporations or private banks, whose moneyed capital is not represented by shares, or in the hands of individuals; that the state, in exercising the permission given by congress, discriminates againstnationalb.ank shares, in .this: that the revenue act of 1888 in its application and enforcement necessarily Bubjects to one rule of taxation all tnoiHlyed capital not held. in shares by corporations, private banks, and the like capital in the hands of individuals, nnd the capital
FIRST NAT.BANKII.dLINDSAY.
621
of nationali'banKs which is held in shares to another and different rule or process of tAxation. discrimination complained of results from the application by the assessing officers of the two rules laid down in the state laws. Now, taking up the first question, you will remember the bank officials in July, 1889, went before the police jury, then sitting, under state laws, as a board to review and adjust the tax-lists and assessments for that year, to have the inequalities complained of corrected. The officials failed to get the relief sought. ' So this suit, particularly as to the inequality as to valuation of shares suggested, comes to you as if on appeal from the refusal of the reviewing board to' make the reductions asked by the bank officers. Then, under this view, you should, after hearing the evidence, do what you believe that board was authorized to do, and should have done, under the facts andlaw in the premises. On this issue plaintiffs, in .addition to the large number of witnesses evidence the following resolution, whom he' examiped, read to you passed by the police jury at or about the time plaintiff went before that board for relief: "That the property in :the parish be assessed at twothirds of its cash value, unless deemed advisable by the jury to assess iIi sonie instances at its full cash value." This rEfgolution shows the offi.cial ani'TYi,u8 of the assessing officers. Aside from showing the ,animu8 of the parQchial board, 10 whose supervision the law intrusts .the listing and taxation ,of all property in the parish and city of Shrevllport, the resolution may be valuable to you in supplementing other evidence,offered by plaintiffs, as ·towhether, as a matter of fact, the assessing officers endeavored, in good faith, to make a uniform assessment, and as to whethertne assessment was in fact made uni(ormly, upon basis of onethird, one-half, or two-thirds of the cash value of listed pro'perty. matters are put at issue iii the pleadings and e"idence. The plaintiffs contended that the weight Of evidence makes up proof that the assessing officers acted arbitrarily, as the resolution suggested their purpose so to do, in making assessments. He contended that those officials made great and oppressive inequali.ties in their assessments, and that, as a rule, much, if not thebtilk, of the taxable property in the parish was not assessed for more than one-third or one-half of its cash value. The defendants' counsel contended that the was not arbitrarily made, that no property was assessed for its cash value, and that the assessments were uniformly; as far as practicable in the nature of things, made on the basis of twd-thirds cash valu'e. These contentions of counsel were elaborately argued. You 'must, in determirting this issue for yourselves, keep in mind the state constitution, which provides that all 'property shall be assessed at a uniform rate. Having considered so much of the first question, it may be best to take up the matter as tofhe willful omission or gross negligence ofthe assessing officers in not 'listing and subjecting to taxation several hundred thousand dollars of moneyed capital, consisting of rights, credits,notes, money loaned at interest, etc., when we have discussed the second com,plaint.' " ., ' .,;. ..,,;, ,.,,' , ,
as
a
622 the bank pres-ents It, m.()re difficult question ;9UQ.WtIl,114rfll.QtL., In thiscomplai1;lt ,the. bank sa)\'s thj3, of 1888 ,and, pa,rishoffl.<;ars ,violates under which congress permits the state to tax its shares. Section . .St., U.: a;" U,nder fwhich,thestate is alone authorizftd tp; ta:x;such shares, . ,',' , ' reads as:follows: "*., . . The stoekhold1'lnl .in such banks and banking a,sBQciations shall .beassessed anq taxed on . Said shares shall ,berincillded In the personal property of sueh shareholde1'll, 01< '" '" but not at a' greater I'ate than is assessed upon bther:illoneyed capital in the hands of individ citizens in the state." ,'.' " , : JJ;xeeptforthis the state tax such bank,shares. "The revenue 'of 1888 defines to be,' among ,other things, bank shares' Sections 21 and 28 of that arl) as follows; "Be it further enacted, ,j etc., "that asseslilment shall hereafter be made under that as capital stock of any Illttional bank, ,state bank. ... '" * banki ng asBociatiQrt,' or oJ any cOl'porath)n'; company, firm, or asso\:iation,whose capital stock is reimlsentEid shares: bn1ith... actual shares shilli be assessed to'the shareholders who appear as 8'uc)ion the books. regardli'ss of any transfer ·not registered or entered ,upon the books"and it shalliJethe duty of the presto the"llssessora complete Hst of those who borne b()uks, as shareholders; and ali. lilO assessed should be ,paid by the 'bank, company, firm, associiltion, or cOl'poratioll which shall be entitled to' col.ect the amount from the $hareholdersor' their transferees." , 28. That't108s'sessm'etlt shall be ronde of capital' employed in trade .under the name; 'a& heretofore,.but mercmmdise 01" ott.ler property taxable Ulldel'. section this 'act,. owned by llDY llerson"or association, firm, or com,pRJly,whose shall b,e assessed to ,the, firm, i!1llilociation,or company having posst-ssion of the sallie, eitber in as' agent for some other named pm'soh or persons." will see says to the "I\tate, tax, in any direqt,w,ay, United States ,powls !lDy que, you, JPIlY, section 5219, tax the shares in, iQational though it should appear that the .01' lJ.ny p.art \-If its Inoneyeq:capital, is made up .of .suchbonds : the. saiq.:sqlltresare not made ,W,beal' is pl'acticallypuidby or imposed ',UP-Qn other ,m,pneyed; ,capital. owned by your indivi<:iual,c,i,tizens· it is, of course, that . ll,Just characterizedJ)ysuch eqUlllity by' constitpti<1n, You. will,see -Aw,tmifOJimity·.4,e\ .,t},latthe test theassessljDentund taxation, pi not res.ult shureholders to pay tax at a greater rate than they or any Qne,else, as indiyidtll,payqpon ,moneyed capital. To apply thijl we t9 tp,e or sectiQns 27 j aQP, emOl.. ,py .. taxing ()ffi.tqe;rs.of th.e ,If; is wrought Otl,t, . ,t,ItE\! 9p9,·t1l ti0 9 s ,specifieallYsJ,ated or.implied in section 5219 are violated, and plaintiffs are entitled
no
or
623 You \vill observe that the ,state tPe.shares of ,na,tjonal banb provisions of section 27, and, underseqtio1l, 28, tajXesmoneyedcapital of private banks or co.rpqrations, in, whichtb,e is, not divided into sharesi and the moneyed capital of individuals., Defendants' counsel, contends tha,tsectioo 27; directs the assessing to assess shares in national banks at theil-caeho" marketrvalue, andrthatin fixing their value fortlllX1J,tion no deductionf:t:bID mOlleYied capital should be allowed for United States Qrstata. ofsuch capital. 'Ehis contention, it is said, is supported by, tlle opinion of th.e state supreme.courtinFirstNat. BGITI.k.!v.Board o/Reviewers, etc., Ann. 181, 5 South. Rep. 4:08. Of ,cour!:'e, the al,lsessipgofficers, in forcingseotion 21, would .be gQverned ,by ,thltt opinioq; Section directs theaS8eSsor, in assel!sjngmoneyed capital, which as a rule in this, parish.seeoos to consist in l.'ight.a, credits. notes, monlilY' loaned 6St, States and state ;}>ouds, byin,dir¥i,<;luals, not toa,s" sess · ,amounts· invested in business,but tP, lit>t ,al)d assess. for item of seriatim. Under the.liSsessing officers ilsBessooch sbare. held,by in bank, and in a.rriving .'at its cash valuefthey_ are,. iUs, to the shares as they are related to the blink's aggregate ;moneyeqcapitall . that is, praetieilU¥, they dh:e¢ted to it atj1".!l warket It iseontended, too,that infixing tbl:HlSSefll:lable value,cof ,such,sh!lres the assessor is forbidden or the capital such federator staJte bonds as be is tended that;$uch a deduction ia<ileJ1ied, to thebank,J>eoouse such when held in the bulkoh.IUltilmal bank's,rppneyedpapitnl, do not come under the law. frmn, taX!\tiOD;. a,lld therefore such 'boOds i when; the mcmeyed. capitlil tional bank, must be considered in :the basisfor when sessor fixes the vf1.l]Je of.such shares for taxation.. Under section 28; t,he assessing 9ff1etlf'd'oes capital may find held,bya.privllotebank,corporation, citlzen, put he is directed by the law to take up, list, and assess one item other, seriatim; bfproper'ty dtnioneyedr eapitalin the handsM citizenS, ,and: must be that, he w'ould, under 'the general'laws, federal' and state; leave out of his listing, as he would come to them, such United States and state bonds as he might find among the of an individual. In addition to leaving such bonds out, heWO.uld of COl.1l'seomit frow, his ljst. fog the exempted ,property named in ,the law. .So. it seems,th1\t, under section; 27; the value. for taxing sU.ch.sbarl*l arri ved at, prltPtically, hy ta.kingtheir market Yalue; th&t is, ,the reaches ..the 'Value of ;byratin.g' rela1\ngthem to of the t;noneyed capita.lof thebaI1k;just, 1lS&· p\\rchaser'Yould:in; open marketl.even though, as a faet,sucb capital is.inade uplargelYr;ifroot ,whQIlY"in United' States and state bonds.; of enforcingrsection27;' while in rfolltH'\ling thl'!. rule, :in,seotiQn' 2,&: tor. as; sessingrigMs', ;credits,etc: ,and, ,sucll ho'nd.a, M
624
FEDERAL REPORTER,
vol. 45.
of individuals, the assessor would, in listing such capital, leave out or off his listing, as he came to them seriatim, federal and state bonds. It is not contended that the assessing officers, when they, in enforcing the state tax-laws, practically comply with the conditions named in section 5219, are not authorized to assess such shares at their commercial value, even should it appear that'the bank's capital is held largely in federal and state bonds; and it must be considered as equally clear that the assessor, acting under section 28, listing moneyed capital of individual citizens,! would be compelled, under federal and state laws, to leave out of his listing such federal and state'bonds as he might find in assessing seriatim themoneyedca:pital of such individuaJs;' . If such securities,' when found, making up a bank's moneyed capital, are by operation of the law, when theassessoris fixing the value of such shares, 'included in the mass of the bank's moneyed capital, and it is shown that the iolisting seriatim the items oran inlUvidual's moneyed capital in which such 'bonds appeared, would, under section 28,leave out Of his listing such honds as he came to them, then an inequality in the rate of taxation is shown, and the conditions of section ·5219 are violated, as well as the provisions of the·constitution forbidding unequal taxation. . In the case of Bank v. Parkfff, 41 Fed. Rep. 402, it was held by Judges PARDEE and BILLINGS of this circuit, 'a case very similar to this one, that the effect of enforcing sections 27 and 28 of the revenue act of 1888 would operate a discrimination against a national bank holding United States bonds in its moneyed capital,in this: That "under the state sta1i' utes of 1&88 all individuals and partnerships, even those engaged in the business of banking, and all moneyed capital in the hands of individual citizens; may have the exemption which the state denies to national banks." Further on the court says: "It is epnceded by complainant that federal bonds, held by a national bank, are taxable as a pllrt of ita capital, and are not to be deducted in fixing the assessable value of its shares, unless they would be in the case of other moneyed capital employed by individual citizens. ... I(c I(c. The fatal objection is not that the federal or state securities are not deducted, but that they are not deducted from the shares, while they are deducted from other moneyed capital. The inequality, not simply the omission of the deduction, is the ground of complaint." . Finally, npon the second C()mplaint, I charge you that the practical effect of enforcing sections 27 and 28 violates section 5219, Rev. St. U. S., and adiscri'mination results to the bank, and in this case plaintiff, in the interest of its shareholders, is entitled to adequate relief. In as. tlertaining thi'l value of the shares, you should deduct from the moneyed capital of the bank all federal and state bonds, and, all property assessable in law to the'bank itself, held at the time of ·the assessment of 1889. Then, after such deductions are made,You will say for what amount the ahares ought to have been assessed for taxation. In determining the assessable "aiue of the shares you will. not be controlled by what the ev. idenceshows to be their market value, but you will rate or assess the
FIRST NAT. BANK V. LINDSAY.
625
shares as you may believe them to be worth, relatively, to the bank's capital, after the deductions suggested by the court have been made. Having ascertained from the evidence, on the first question, the basis for assessment which was, as a matter of fact, uniformly adopted by the assessor,-that is, whether he assessed on the basis of one-third, onehalf, or two-thirds of the cash value of the listed property,-you will, as far as practicable, in fixing the value of the shares for taxation, adopt the bal'lis upon which you find he, as a rule, assessed taxable property. Passing to the contention of the plaintiff's counsel that the assessment, as aga.iost the bank, should be entirely annulled, it is argued that the assessor, with the consent and knowledge of the police jury, willfully. or through gross culpable negligence, refused and failed to list for taxation several h\lndred thousand, dollars' worth of moneyed capital of individvalues uals, private banks, and corporations, consisting of such as rights, credits. bills receivable, notes, money loaned, bank deposits, mortgages, etc.· in the parish and city; that gross inequalities and such culpable omissions are shown in other parishes; that such willful refusal or omission on the. pallt of the parish and state offiCials resulted in a gross and culpable inequality in the listing and assessment of taxable propel'ty throughout the state, and relief to the extent of annulling the assessment should be given to any tax-payer complaining in court. Upon this point you will consider the resolution of the police jury, YOll will call to mind the testimony of 80 or more tax-payers, representing in themselves several hundred thousand dollars of taxable property, who testified, ,at the instance of the plaintiff, as to the extent of inequality existing in the listing and assessment of property in this and other parishes. You will remember that among the witnesses were three members of the police jury in 1889, when the bank's assessment was made. Two of those witnesses, Mr. Cole and Mr. Foster, said that they, each of them, at that time, held mortgage notes, rights, and credits, and had several thousand dollars of their moneyed capital loaned at interest, but did not give in any rights, credits, etc., to the assessor, because others were not required or made to comply with the law. Mr. Cole said it was understood among the members of the police jury that such moneyed capital of.individuals should not be bothered with by the assessor, Mr. Foster said that a business man, Stephens, in Shreveport, gave into the a8sessor$85,000 of such capital, and, as only a trifling amount of such capital had been listed for taxation, the police jury directed that Stephens should not be taxed .on his $35,000. Zeigler, a witness, said be gave in $7,000 of such capital, but the assessor did not list it. Lindsay, the assessor, said that he found it impracticable to list such moneyed capital in the parish, and. though it was his duty to list such capital, he, after making some effort to do so, gave up trying, and, as a matter of fact, only a trifling amount was secured for assessment in 1889, as was the case in previous years. On cross-examination he said his effort to, list such property consisted in his asking two tax-payers, whom' he named, to give in such property. They denied having such capital, and he abandoned furt,her effort to subject such property to taxation. v .45F.no. 9-40
'i'JmEBAt REPORTER,' vol: 45.
this imdenee,'recaiIihg 'it to you,'becaUl!e ;it 'makes up, substantially, aU or: the direct 'testimony showing, the animus which characterized the fal1tire 'of the 'officials, complaihad .Mby plaintiff. In answer to this contention defenchil'lts' counsel doest1Ot deny that a very largalLluount of such moneyed 'capital in the hands of private banks and eortJorations, hi which stock is not held in shares,:and in the hands of was for taxation,and but It trifling amount of such capital in thehllnds of individuals was put, on' the tax-rolls. But lie' oontends that of the 'evidence shows 'that the officials did in thepre,rriises, and tJhat, as a matter offnct, it was impracUb8.ble, and' impossIble: to run down 'and unearth such property for tax,Without any way on the facts upon this point, it seems ,that the 1ft WS O'f'the 'state are abimdantly full tif remedial process by. ;aU. suen" moneyed cdpital'cotl1d have unearthed 'uniformly to taxationiThere seems to be nothing wantprocess of the'laws under which:the assessing officers leet If :found such it large 'sum' was D'Ot'listed for taxation, yoti must charge the 'failuretothe'officia]s,and :nott'o'the'inadequacy of 'thlf'law. "Th'elawtequires all propertyment1oned' in section 1 to Of course, mu'ch of it,hi the nature of things, be: wiUescsipa the assess'or's'\"igilance. 'He must be held 'to a reasonable diS'ehiitge of hi$ duties in complyitig with the laW, 'which reqUires that a1l'prl1perty sha'll be Milessedat a uniform rate. " . ,I iyou, if'yon find' that it was impracticable to list and aSsess the large sum, or any such sum ofHke magnitude; as was sbow'ri oy the ted ·evidenceM hl:l.ve been omitted by thl\l: nssessiI'lg officers.-andyou· nnd that, asa matter of fact, it Was practicable, with the besteffortsof'Ellltlhotficers, aided by the'law, to list on1ya: trifling amountof' Buchcapita1 as Was in f8i<lt'subjectedto taxatioD in 1889, th.en' the listing and assessment was' unequal, and wanting in the requited uniformity, and in itadiscriminatiofISn:lOre burdensome to somlf than to other tax-payers; thatj under such circumstances, it wasespeciltlly burdensome to the very few among WhOlIi' was" the plaintiffbank,against whomtaX!ationupon mo:neyed Cll.pital was actuallyitnposed and colleoted. If youfind,asa matter of flidf, from any cause,whether by neglect or refusal of the assessing offleerS;' 01' froHlothercauses, such -a;flargesum WaE!' not, as a matter of fabt, 'listedlfortaxation; in the patish; and that only a few persons were moneyed capital, And they only for comparatively trifling anloimts',' arid :that the' great bulk of .such capitAl iirl the hands of individuals'was noHaxedatall. then you are rwartlintedin concluding that lhe cOl)ditions in section 5219;'aswell as the provisions, in the state con'stitutions,;to 'enforce 1lne'observilnce 'of 'equality'and,uniformity in the of tfixing all prbperty in the' state; have, been violated lind disregal'rledas 'to 'plaintiff,and youai'e authorized: ,to to the bank insu6h away as wil}1protect' shareholders .fiX)mfpll.yitflga; greater rate is1m,posed on individnal citizens, ' , ' . . Upon tl* 'nudit6r1.of. Jredueing,th& assessments, s<> as rogiv&adequate I,
,'r :'ruti ;Mer
LEESONV. YOU-\,,\l.
627
l',eliefjyouwill on1Y,approximately do so;bl1,tyour should you may believe. to ,be, sub. , stantIally, .remedlal In the premIsqfl.. . In addition. to what we. have. been consIdering, the plai l1 tiff says an oppressive .and wanton was made against the shareholders, in this: That the assessin.g officers. have willfuHy , wantonly, or through gross culpable negligence, refused, failed, and ornitted to subject.to tax'ation a large ulllount,nearly if not Ill-pre than$l,OOO,OOOof rights, credits, notes, mortgages, etc., and ,other monlfy-ed capital, wh1ch lmownby such officers to be inthe hands of individual citizens of the city. Upon this matt.er! charge you that it is not dis.that a large SUm of such moneyed capital was not listed (orbpration, and that,as.a matter of fact, only a trifling amount pfsuch tilxablt; property was subjected to taxation; and, iftheevidt:nce .sustains. tb,e allegation of such, willful or gross culpable againsttpe assessing officers"you are authorized to relieve plaintiffs to annulling thewhoJe assessment as to the bank. . the . Verdict for plaintifiS.
V. YOUNG.
{CwCtdt Court, lV.t>. California-March, OusTOMD:uTms-"SEINE AND GILLiNG TWINE."
An· article manufacturEld, imported, and. IMlld under the name "salmon net twine, 14 ply,". made of the flrstquality ·of flax. 14 small strands or threads. very slightly twisted together, alld mainly used for making seineSll11d gilling nets for :catchingibh; and known .in thE! tl'ade and in itense as "salmon seine, " and "seine and gilllng twine, " th9ugh. it can be used for sewing sacks. shoes, etc., is at 25 perCen't. ad val.l7I'eTn, t\S'''seil1es "'and "seine or gilling twine, "under Schedule J;. Act' 1ll83,'(22 St. 507,) rather than 40 per cent. ad valorem, as "fiax or linen thre$li, " the same schedule. .
At Law. SuithyJ; R. Leeson against J.n. Yo,?ng, administrator of the estate of Sullivan, 'collector, to recover the excess of duties alleged to have been illegally exacted. .' . E. P; Sioorlflguer and G,cOrfJe A · .Wentworth, for plaintiff. Jack80iillatch, Ass. U. 'S. Atty. for deJEmdant. . Before S,AWY:\i:R, Circuit Judge. ' ·. i -',
This is it suit .to recover an excess of duty charged 'by the of the port of San Franpisco, on what is or gilling twine. ..... '. . 'The" only question thear.iicle is or linen thread" mentioned in S&h'edri1e Jot'theact of 18S3'emoracing hemp, jute and flax goods, taxable at 40 per cent. ad or whether it is "seines" or "seine and gilling twine" as used in the same schedule, and
..