Mackaye v. Mallory.

brought in a State Court, the removal was imperative, if the proceedings were in conformity with the Act; that the question whether the defendant had, in fact, a right to remove the suit could not be raised by a motion to this Court, before the trial, to remand the cause to the State Court; and that any question as to the jurisdiction of this Court in the premises, based on the point of an alleged absence of right in the defendant to remove the suit, could be raised at the trial. That was an action of replevin, brought in the State Court to recover the possession of cotton. The defendant removed the case, under the Act of 1833, by certiorari, claiming that he was in possession of the cotton as an officer under the revenue laws of the United States. The plaintiffs moved to remand the cause, on affidavits alleging that the defendant was simply a tort feasor. The motion was denied, on the view that it was not proper, if it was competent, for this Court to determine, upon motion, the disputed jurisdictional facts involving the right or legality of the removal, and that the proper place to hear and determine them was on the trial. The same view was held by Mr. Justice Nelson, in Fisk v. Union Pacific R. R. Co., (8 Blatchf. C. C. R., 243.)

Those cases were prior to the enactment of § 5 of the Act of March 3d, 1875, (18 U. S. Stat. at Large, 472,) which provides, that if, in any suit removed, it shall appear, to the satisfaction of the Circuit Court, at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the Circuit Court, the Circuit Court shall proceed no further therein but shall dismiss the suit, or remand it to the Court from which it was removed, as justice may require. Under this provision there is no doubt of the power of this Court to remand a cause at any time, even before a formal trial of the plenary issues in it, whenever it appears that the Court has no jurisdiction of the suit. In fact, the statute is imperative, that, whenever such want of jurisdiction appears, the Court shall dismiss or remand the suit. But, the provision does not require the Court to remand

case.

Mackaye v. Mallory.

the suit unless it appears that the suit does not involve a controversy properly within its jurisdiction. If the suit appears, on the removal papers and the prior record, taken together, to be a suit properly removable, it is not to be remanded, if the question arises solely on those papers, as it does in this This view does not affect cases like Galvin v. Boutwell, (9 Blatchf. C. C. R., 470,) and Heath v. Austin, (12 Id., 420,) where, even before the Act of 1875, the question of citizenship was tried on affidavits in this Court, on a motion to remand. The same thing was done, after the Act of 1875, in Sawyer v. Switzerland Marine Ins. Co., (14 Id., 451.) It is the practice of the Courts of the United States, under the Act of 1875, to try the question of jurisdiction, on a motion to remand, and before the plenary trial. In Gold Washing Co. v. Keyes, (6 Otto, 199,) the Circuit Court did this and remanded the cause, and the Supreme Court, on a writ of error taken under § 5 of the Act of 1875, affirmed the judgment of remand, on the ground that, on the pleadings of the State Court and the petition for removal, taken together, the jurisdiction of the Circuit Court did not appear. The same course was taken in Bible Society v. Grove, (11 Otto, 610,) and in Jifkins v. Sweetser, (12 Otto, 177.) The question of jurisdiction was not left to be tried at the formal trial of issues raised by the pleadings. The question to be determined on this motion is, whether the record before this Court shows jurisdiction or a want of jurisdiction.

In Gold Washing Co. v. Keyes, (above cited,) it is said: "For the purposes of a transfer of a cause, the petition for removal, which the statute requires, performs the office of pleading. Upon its statements, in connection with the other parts of the record, the Courts must act in declaring the law upon the question it presents." Again: "The record in the State Court, which included the petition for removal, should be in such a condition when the removal takes place, as to show jurisdiction in the Court to which it goes. If it is not, and the omission is not afterwards supplied, the suit must be remanded." Certainly, the petition in this case shows a re

The Albany City National Bank v. Maher.

movable case, under the Act of 1875, because it avers that the allegations of the complaint respecting G. S. Mallory are untrue, and that he has not and never has had any interest in the subject matter of the suit. Even taking into view the complaint with the petition, it does not appear that this Court has not jurisdiction of the suit. For the purposes of a

removal, the allegations of the removing party, in the petition, must, at this stage of the case, prevail, and the suit must, for the present, be retained in this Court.

Francis N. Bangs, for the plaintiff.

James C. Carter, for the defendants.

THE ALBANY CITY NATIONAL BANK

vs.

WILLIAM H. MAHER, RECEIVER OF TAXES OF THE CITY OF ALBANY. IN EQUITY.

The Act of the Legislature of New York, passed June 1st, 1880, (Laws of New York, 1880, chap. 542, p. 763,) taxing certain corporations on dividends on their stock, or, in the absence of dividends, on a valuation of their capital stock, and exempting the capital stock and personal property of such corporations from other assessment or taxation, does not exempt individuals from assessment or taxation on their personal property or moneyed capital invested in the shares of such corporations. Hence, a tax assessed against the individual stockholders in a national bank in New York, in respect of their stock, under the Act of the Legislature of New York, passed June 26th, 1880, (Laws of New York, 1880, chap. 596, p. 888,) is not in contravention of 5,219 of the Revised Statutes of the United States, which prohibits the taxation of shares in national banks at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the State. Under the Act of the Legislature of New York, passed March 23d, 1850, (Laws

The Albany City National Bank v. Maher.

of New York, 1850, chap. 86, p. 125,) prescribing the form and contents of an annual assessment roll for taxation, in the city of Albany, and its publication, the names of shareholders in a national bank assessed for personal property on account of their stock must be contained in such assessment roll, and, if a separate list is made, with their names and other particulars as to the stock, and the names and particulars are not in such assessment roll, the assessment is void, and an injunction will be granted to restrain the collection of the tax against the shareholders, in a suit brought by the bank for the purpose, because the bank is required, by the said Act of June 26th, 1880, to retain so much of any dividend belonging to a stockholder as shall be necessary to pay any tax assessed in pursuance of said Act.

(Before WALLACE, J., Northern District of New York, April 12th, 1881.)

WALLACE, J. The complainant moves for an injunction to restrain the defendant from all proceedings to collect a tax assessed against various stockholders of the complainant by the Board of Assessors of the city of Albany. The statute under which the assessment was made (Act of June 26th, 1880, Laws of New York, 1880, chap. 596, p. 888) requires every banking association to retain so much of any dividend or dividends belonging to stockholders as shall be necessary to pay any taxes assessed in pursuance of the Act. The complainant's bill alleges that its stockholders have been assessed; that none of them have paid the tax; and that several of them, owning together about half of the capital stock of the bank, have demanded their dividends, and directed the complainant not to pay therefrom the taxes assessed, and refuse to allow the complainant to retain their dividends for that purpose.

The first ground upon which the right to an injunction is placed by the complainant is, that the assessment contravenes section 5,219 of the Revised Statutes of the United States, which prohibits the taxation of shares in national banks at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the State. The assessment was made under the provisions of chapter 596 of the Laws of New York, of 1880, prescribing a system for the taxation of banks and moneyed capital invested in the business of banking. By another Act of the same year, (chap. 542, Laws of 1880,) all corporations except banks, life insurance compa

APRIL, 1881.

The Albany City National Bank v. Maher.

177

nies and manufacturing companies are taxable upon their dividends, when the dividends declared during the year amount to six per centum, or more, or, when there are no dividends, or the dividends are less than six per centum, then the tax is to be assessed upon a valuation of their capital stock made by the Comptroller of the State in a mode prescribed by the Act. Section 8 of this Act exempts the capital stock and personal property of these corporations from other assessment or taxation.

It is claimed for the complainant that this latter Act respecting the taxation of corporations subjects them to a moderate taxation and exempts their stockholders from any other taxation upon their stock and personal property in such corporations, while the Act for the taxation of banks provides for a tax upon the shareholders and an assessment on the value of the shares, and its operation is to impose a much heavier tax; and the bill alleges that the stockholders of complainant are now taxed under that Act at the rate of $3 60 on the par value of their shares, making the tax of all the stockholders of the bank the sum of $9,191, while, under the general Act, the tax of all the stockholders would be but $450.

The national banking Act permits the shares in any national bank to be included in the valuation of the personal property of the owner of such shares for the purposes of taxation under the laws of the State where the bank is located, but grants this right of taxation 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 the true construction of this restriction is, that it prohibits an assessment based upon a valuation which discriminates unfairly against bank shares, and is not merely intended to secure equality in the rate of the tax after the assessment has been made. (People v. Weaver, 100 U. S., 539.) If, therefore, the laws of this State prescribe one mode of assessment for the moneyed capital of individuals invested in ordinary corporations and joint stock companies, and another for that invested in national banks, the VOL. XIX.-12