Bank of Commerce v. Tennessee (161 U.S. 134)
Separate bills in equity by the state of Tennessee, for the use of the city of Memphis, and by the state of Tennessee and the county of Shelby, against the Bank of Commerce and James A. Omberg. Decrees for defendants were reversed by the state supreme court (31 S. W. 993) and they bring error. Reversed.

These are writs of error to the supreme court of the state of Tennessee, sued out by the plaintiffs in error for the purpose of reviewing the judgment of the state court in favor of the state in each case. They are both of them suits in equity, brought by the state, for the use of the city of Memphis in the one case, and by the state and the county of Shelby in the other, for the purpose of recovering the amounts of certain taxes alleged to be due the city of Memphis and the county of Shelby for various years, commencing in 1887. The suits are substantially alike, and involve the same questions, and the decision of the one will be the decision of the other. In the further discussion it will only be necessary to refer to the first case.

The bill, after it was amended, set forth the material facts necessary to raise the questions herein involved. It alleged the incorporation of the bank in 1856, and in its charter was contained the following provision: 'Said institution shall have a lien on the stock for debts due it by the stockholders before and in preference to other creditors, except the state for taxes; and shall pay to the state an annual tax of one-half of one per cent. on each share of capital stock, which shall be in lieu of all other taxes.' It alleged that, notwithstanding the above provision, there had been assessed upon the stock certain amounts, alleged to be due for taxes, for the years 1887 to 1890, inclusive, by virtue of chapter 2 of the general tax laws of the state for the year 1887, and chapter 104 of the Laws of 1889; and in the amended supplemental bill an additional sum was claimed for the taxes from 1891 to 1894, inclusive, under the above-mentioned acts. The bill also made claim to recover the ad valorem taxes on the surplus and undivided profits of the plaintiff in error bank for the years 1892, 1893, and 1894, under the proviso contained in section 3 of chapter 26 of the Extra Session Acts of 1891, the proviso reading: 'Provided, that the surplus and undivided profits in such bank, banking association or other corporation shall be assessable to said bank or other corporation, and the same shall not be considered in the assessment of the stock therein.' All the material allegations necessary to show a valid and legal assessment upon the stock were set forth in the bill, unless the provision in the charter of he bank above alluded to prevents the assessment of such stock or shares of stock in the hands of shareholders in any other way or for any other sum than that stated in the charter. The bill also alleged that complainant was advised that the capital stock in a corporation and shares of stock in the hands of shareholders were separate and distinct subjects of taxation, and that, in the absence of any exemption clause, it was within the power of the state, without subjecting such legislation to the objection of double taxation, to have taxed both the capital stock of the corporation and the shares of stock in the hands of the stockholders; that the charter tax, bonus, or whatever else it may be called, or one-half of 1 per cent. to be paid to the state is a tax upon the shares of stock, and that the language 'in lieu of all other taxes' means in lieu of all other taxes on the shares of stock, and that it has no effect to exempt the capital stock of the corporation from taxation. The question of law whether the capital stock is subject to ad valorem taxes or the shares of stock in the hands of the shareholders was submitted to the court for determination. The bill also sets forth that after the adoption of the constitution of Tennessee of 1870 (on the 4th day of May in that year) the capital of the bank had been increased from either $60,000, or from $200,000, to $1,000,000, and the plaintiffs allege that the new stock, whatever may be the amount thereof, aside from all other questions, is taxable.

To the original bill a demurrer was filed upon the ground that the general tax laws, under which the taxes against the bank or its shareholders were assessed and sought to be collected, were violative of the contract provision of the constitution of the United States. The demurrer was overruled, with leave to the defendants to rely on it in their answer. Thereupon a stipulation was made, in each case fixing the basis of the reassessments for the years 1891, to 1894, inclusive, waiving the necessity for the discovery of the shareholders in the bank upon the bank's agreeing 'that for the purposes of this case the shares of stock in the name of J. A. Omberg shall be taken as validly and legally assessed for the years aforesaid.' It was further stipulated 'that any liability that might be adjudged against Mr. Omberg as a shareholder in such corporation should be treated as establishing a like liability of all the shareholders therein, and that for such liability of all the shareholders as thus established a decree should be entered against the corporation, the said corporation consening that complainants have a decree against it for any liability for taxes that may be herein established against the shareholders.' The stipulation between the parties was that the defendant J. A. Omberg should, for the purpose of testing the liability of the shareholders for taxes, be considered and treated as a representative of all the shareholders, and that a liability decreed against him for taxes due as a shareholder should be considered as the liability of all the shareholders duly established, and that a decree in favor of complainants should be entered against the bank and against its unknown shareholders.

The case thereupon was heard upon the amended and supplemental bills, the stipulations above spoken of, which were filed, and the demurrer of the defendants, which raised the question that the tax laws under which these taxes were sought to be collected against it and its shareholders were void, because in conflict with section 10 of article 1 of the constitution of the United States. The chancellor before whom the case was tried was of opinion that the demurrer was well taken, and accordingly dismissed the bill of complaint. The supreme court of the state of Tennessee reversed this decree of dismissal, and held: First, that the owners of shares of stock in the Bank of Commerce were thus liable for ad valorem taxes to the city of Memphis; and, second, that the bank was liable for ad valorem taxes to the city for the years 1892 to 1894, inclusive, on its surplus and undivided profits. Judgment was entered accordingly, and the plaintiffs in error the Bank of Commerce and J. A. Omberg have sued out this writ of error to obtain a review of the judgment by this court.

The errors assigned are: (1) That the supreme court of Tennessee erred in adjudging a liability of the shareholders in the Bank of Commerce to pay to the state of Tennessee, or to the county of Shelby, or to the city of Memphis ad valorem taxes on their shares of stock for the years specified, because, as is alleged, the shareholders are thereby deprived of the immunity from taxes guarantied to them by the contract contained in the charter of the Bank of Commerce, and that the general tax laws affirmed to be valid against them are repugnant to the constitution of the United States. (2) For the like ground error is assigned to so much of the decree as denies to the plaintiff in error the Bank of Commerce an exemption from taxation on its surplus and undivided profits, notwithstanding its exemption therefrom under its charter provision.

William H. Carroll, R. J. Morgan, and T. B. Turley, for plaintiffs in error.

S. P. Walker, for defendants in error.

Mr. Justice PECKHAM delivered the opinion of the court. 

Notes
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