case are such as to lead to satisfactory evi- | James Travers calling Sophia his wife durdence of such a contract having taken place; ing that period may be laid on one side. the acknowledgment of the parties, their Just before he died Travers moved to New conduct towards each other, and the repute Jersey and there made his will. As in consequent upon it, may be sufficient to Maryland, he spoke of his wife in that instruprove a marriage.'” P. 41. See also 2 ment, and, as I understand it, the decision Greenl. Ev. Harriman's ed. 88 461, 462, and that he was married must rest wholly on notes; 3 Wigmore, Ev. $8 2082, 2083, and this recognition and the fact that in New authorities cited.

Jersey a marriage may be made without the Without further discussion or citation of intervention of a magistrate. I do not see authorities, we adjudge that the courts be how these facts can be enough. Habit and low did not err in holding that, under the repute might be evidence of a marriage when evidence, James Travers and the Mrs. Trav- unexplained. But they must be evidence of ers, who lived with him constantly and open- a contract, however informal, to have any ly as his wife for more than eighteen years, effect. When an appellation shown to have were, in law, to be deemed husband and been used for nearly eighteen years with conwife at the time of his death, in New Jersey, scious want of justification continues to be in 1883. It results from this view that the used for the last month of lifetime, I do not decree of the Court of Appeals, affirming the see how the fact that the parties have decree of the Supreme Court of the District, crossed a state line can make that last must itself be affirmed.

month's use evidence that in that last moIt is so ordered.

ment the parties made a contract which

then, for the first time, they could have Mr. Justice McKenna and Mr. Justice made in this way. Moody did not participate in the decision It is imperative that a contract should of this case.

have been made in New Jersey. Therefore,

even if both parties had supposed that they Mr. Justice Holmes dissenting:

were married, instead of knowing the conI feel some doubts in this case which I trary, it would not have mattered. To live think that I ought to state. I understand it in New Jersey and think you are married to be assumed, as it must be admitted, that does not constitute a marriage by the law James Travers and Sophia V. Grayson lived of that state. If there were nothing else in together for many years, calling themselves the case it might be evidence of marriage, man and wife, when they were not man and but, on these facts, the belief, if it was enwife, and probably knew that they were tertained, referred to the original inadenot man and wife. This condition of things quate ground. Collins v. Voorhees, 47 N. J. lasted from 1865, the time of the pretended Eq. 555, 14 L.R.A. 364, 24 Am. St. Rep. 412, marriage in Virginia, to which their co- 22 Atl. 1054. A void contract is not made habitation referred for its justification, un- over again or validated by being acted upon til 1883, the year of James Travers's death. at a time when a valid contract could be So long as they lived in Maryland, that is, made. When a void contract is acted upon, until some time in 1883, if they had at the remedy, when there is one, is not on tempted to make their union more legiti- the contract, but upon a quasi-contract, for mate by simple mutual agreement they could a quantum meruit. There is no such alternot have done it. Therefore the instances of native when a marriage fails.

HOME SAVINGS BANK, Piff. in Err., tion. The plaintiffs in error were banking V.

institutions incorporated under the laws CITY OF DES MOINES and the City Coun of the state of Iowa. Upon each of them cil of Said City as a Board of Review.

a tax was levied under a law of that (No. 82.)

state, which provided that "shares of stock PEOPLE'S SAVINGS BANK, Plff. in Err., of state and savings banks and loan and V.

trust companies shall be assessed to such CITY OF DES MOINES and the City Coun- banks and loan and trust companies, and

cil of Said City as a Board of Review. not to the individual stockholders." The (No. 83.)

material sections of the Code are printed in

the margin.t DES MOINES SAVINGS BANK, Piff. in

Each bank owned at the time to which Err.,

the assessment related United States bonds, V. CITY OF DES MOINES and the City Coun the value of which they insisted should be

cil of Said City as a Board of Review. deducted from the valuation of the property (No. 92.)

assessed to them. The taxing authorities

refused to make that deduction, and their Taxes—immunity of national securities action was sustained by the supreme court from state taxation.

of the state, whose judgment has been The immunity of national securities brought here by writs of error for review. from state taxation is violated by a tax

These banks were corporations created by imposed under the authority of Iowa Code, § 1322, directing that shares of stock of the state of Iowa. In imposing burdens state banks shall be assessed to such banks, upon them, their property, or their shares, and not to individual stockholders, the sub- the state does not, as in the case of nastantial effect of which is to require tax- tional banks, require any authority from ation upon the property, not including the the United States. Its own governmental franchises, of such banks, and to adopt the power is sufficient for the imposition of value of the shares as the measure of the such taxes, assessed by such methods, and taxable valuation of such property, with under such standards of valuation, as it out permitting any deduction from such valuation on account of bonds of the United may choose, unless something is done which States owned by the banks. *

violates some provision of the Federal

Constitution, or of a Federal law which, by [Nos. 82, 83, 92.]

that Constitution, is made supreme. The

only claim of violation of Federal right Argued November 2, 5, 1906. Ordered for which need be considered here is that bonds

reargument December 3, 1906. Reargued of the United States have been taxed. It March 5, 1907. Decided April 22, 1907.

is conceded, and cannot be disputed, that N ERROR to the Supreme Court of the these securities are beyond the taxing pow

State of Iowa to review three judg- iSec. 1322. Shares of stock of national ments which affirmed judgments of the banks shall be assessed to the individual District Court of Polk County, in that state, stockholders at the place where the bank is affirming the action of the Board of Review located. Shares of stock of state and sav. of the City of Des Moines in refusing to ings, banks and loan and trust companies, deduct from

from the assessment of certain shall be assessed to such banks and loan state banks upon their shares of stock the dividual stockholders. At the time the as

and trust companies, and not to the inamount of government bonds owned by sessment is made, the officers of national them. Reversed and remanded for fur- banks shall furnish the assessor with a list ther proceedings.

of all the stockholders and the number of See same case below (Iowa) 101 N. W. shares owned by each, and he shall list to 867.

each stockholder, under the head of corThe facts are stated in the opinion.

poration stock. the total value of such Messrs. William G. Harvison and Hora- value of such shares, the corporations shall

Messrs. William G. Harvison and Hora. shares. To aid the assessor in fixing the tio F. Dale for plaintiff in error in No. furnish him a verified statement of all the 82.

matters provided in the preceding secMessrs. Nathaniel T. Guernsey and tion, which shall also show,

, separately, George F. Henry for plaintiffs in error in the amount of capital stock, and the Nos. 83 and 92.

surplus and undivided earnings, and Messrs. William H. Bremner and M. H. the assessor, from such statement and Cohen for defendants in error.

other information he can obtain, including any statement furnished to and informa

tion obtained by the auditor of state, which Mr. Justice Moody delivered the opinion shall be furnished him on request, shall fix of the court:

the value of such stock, taking into account These cases raise the same Federal ques. I the capital, surplus, and undivided earnings.

*Ed. Note.-For cases in point, see Cont. Dig. vol. 45, Taxation, $ 20.

IN

er of the state, and the only question, there, the contrary, is owned by the stockholders. fore, is whether, in point of fact, the state Certainly such a purpose, against common has taxed them. The first step useful in justice and of doubtful constitutionality, the solution of this question is to ascertain ought not to be attributed to the law if with precision the nature of the tax in con any other fair construction is possible. troversy, and upon what property it was with respect to taxation, usually, if not levied, and that step must be taken by an necessarily, property and its owners are inexamination of the taxing law as inter- separable. Taxes are assessed against perpreted by the supreme court of the state. sons upon the property which they own, not A superficial reading of the law would upon property which others own. We lead to the conclusion that the tax au- should be reluctant to suppose that there thorized by it is a tax upon the shares of has been any departure from this principle stock. The assessment is expressed to be in this law. It, however, is not an uncomupon “shares of stock of state and savings mon, and is an entirely legitimate, method banks and loan and trust companies.” But of collecting taxes, to require a corporation, the true interpretation of the law cannot as the agent of its shareholders, to pay in rest upon a single phrase in it. All its the first instance the taxes upon shares, as parts must be considered in the manner pur- the property of their owners, and look to sued by this court in New Orleans v. Hous- the shareholders for reimbursement. In this ton, 119 U. S. 265, 278, 30 L. ed. 411, 415, very law we have an example of this meth7 Sup. Ct. Rep. 198, and Home Ins. Co. v. od. By $ 1322, national bank shares are as

§ New York, 134 U. S. 594, 33 L. ed. sessed to the stockholders, and by § 1325 1025, 10 Sup. Ct. Rep. 593, with the view of the corporations are made liable to pay determining the end accomplished by the the tax and are secured by a lien on the taxatica, and its actual and substantial stock and dividends, which may be enforced purpose and effect. We must inquire wheth-by sale. The state banking corporations er the law really imposes a tax upon the are excluded ex industria from this statushares of stock as the property of their tory right of reimbursement by confining it owners, or merely adopts the value of those to the cases of “taxes assessed to the shares as the measure of valuation of the stockholders of such corporation.” This canproperty of the corporation, and by that not include the case of state bank shares, standard taxes that property itself. The re- which are not so assessed. sult of this inquiry is of vital importance, corporations in the case at bar have, by any because there may be a tax upon the possibility, a common-law right to recover shares of a corporation, which are prop- the tax paid from the shareholders. The erty distinct from that owned by the cor- law imposes no obligation on the shareporation, and with a different owner, with holder. In paying the tax the corporaout an allowance of the exemption due to tion has paid its own debt, and not that the property of the corporation itself, while, of others, and there is nothing in such a if the tax is upon the corporation's prop- payment from which the law can imply a erty, all exemptions due it must be allowed. promise of reimbursement. These taxes, Looking, then, further into the law, it ap- therefore, are not to be paid by the banks pears that the shares are to be "assessed to as agents of their stockholders, but as their such banks ... and not to the indi- own debt, and, unless it is supposed that vidual stockholders." When this is read the the law requires them to pay taxes upon doubt instantly arises whether the law in- property which they do not own, the taxes tended to tax the corporation for prop- must be regarded as taxes upon the property which it does not own, but which, on erty of the banks. The fair interpretation In arriving at the total value of the shares | name of the county. Such corporations may of stock of such corporations, the amount of recover from each stockholder his proportheir capital actually invested in real estate, tion of the taxes so paid, and shall have owned by them, shall be deducted from the a lien on his stock and unpaid dividends real value of such shares, and such real therefor. If the unpaid dividends are not estate shall be assessed as other real estate, sufficient to pay such tax, the corporation and the property of such corporations shall may enforce such lien on the stock by pubnot be otherwise assessed.

lic sale of the same, to be made by the Sec. 1325. The corporations described in sheriff at the principal office of such corthe preceding sections shall be liable for the poration in this state, after giving the payment of the taxes assessed to the stock-stockholders thirty days' notice of the holders of such corporations, and such tax amount of such tax and the time and place shall be payable by the corporation in the of sale, such notices to be by registered same manner and under the same penalties letter, addressed to the stockholder at his as in case of taxes due from an individual postoffice address, as the same appears uptaxpayer, and may be collected in the same on the books of the company, or is known manner as other taxes, or by action in the by its secretary.

of the law is that the taxes are upon the the standard or measure by which the taxproperty of the banks. In the valuation for able valuation of that property is detaxation the assessor is required to “take termined. This we think is consistent with into account the capital, surplus, and undi- | the interpretation of the law by the suvided earnings," must be furnished with "a preme court of Iowa, which sustained the verified statement of all matters provided taxation upon grounds which will be presby the preceding section,” which, by referently considered. ence, is seen to be a detailed statement The next question is whether such taxshowing the assets of the bank (§ 1321).ation violates any provision of the Federal It is true that the assessor may resort to Constitution or of any paramount Federal "other information he can obtain," but, al- law. The state cannot, by any form of though capital, surplus, and undivided earn- taxation, impose any burden upon any ings are expressly named, nothing is said part of the national public debt. The Conof the franchise and good will, essential stitution has conferred upon the governfactors of the value of the shares, though ment power to borrow money on the credit not of the value of the assets of the of the United States, and that power canbank. See People ex rel. Union Trust Co. not be burdened or impeded or in any way v. Coleman, 126 N. Y. 433, 12 L.R.A. 762, affected by the action of any state. This 27 N. E. 818. Moreover, the section closes principle was announced in Weston v. with the words, "and the property of such Charleston, 2 Pet. 449, 7 L. ed. 481, where corporation shall not be otherwise assessed,” it was held that taxes upon the stock of the which plainly implies that the assessment United States, levied by one of the municialready provided for is, in substance, an pal corporations of South Carolina, were inassessment upon the property of the cor- valid. From that time no one has questioned poration. That the law was administered the immunity of national securities from upon the theory that the tax was upon state taxation. It may well be doubted the property of the corporation is signally whether Congress has the power to confer illustrated by the proceedings in these upon the state the right to tax oblicases. The valuation was first made on the gations of the United States. However exact figures of the capital, surplus, and un- this may be, Congress has

has never yet divided earnings, deducting the holdings of attempted to confer such a right. Until United States securities. Then, upon being the time of the Civil War it was not advised that the deductions was erroneous, thought to be necessary to express the conthe assessor corrected the valuation by stitutional prohibition in an act of Conadding the value of the securities deducted. gress. But, on the occasion of authorizing We therefore conclude that the substantial the issue of Treasury notes, it was enacted effect of the law is to require taxation upon that "all stocks, bonds, and other securities the property, not including the franchise, of the United States held by individuals, of the banks, and that the value of the corporations, or associations within the shares, ascertained in a manner appropriate United States shall be exempt from taxto determine the value of the assets, is only ation by or under state authority.” Act of

Sec. 1321. Private bankers. Private 4. The actual value of bonds and stocks banks or bankers, or any persons other than of every kind and shares of capital stock corporations hereinafter specified, a part or joint stock of other corporations or comof whose business is the receiving of de- panies, held as an investment, or in any way posits subject to check, on certificates, re- representing assets, and the specific kinds ceipts, or otherwise, or the selling of ex- and descriptions thereof exempt from taxchange, shall prepare and furnish to the as- ation; sessor a sworn statement showing the as- 5. All other property pertaining to said sets, aside from real estate, and liabilities business, including real estate, which shall of such bank or banker on January 1st of be specially listed and valued

and valued by the the current year, as follows:

usual description thereof; 1. The amount of moneys, specifying The aggregate actual value of moneys separately the amount of moneys on hand and credits, after deducting therefrom the or in transit, the funds in the hands of amount of deposits and of debts owing by other banks, bankers, brokers, or other per- such bank, as provided in this chapter, and sons or corporations, and the amount of the aggregate actual value of bonds and checks or other cash items not included in stocks after deducting the portion thereof, either of the preceding items;

exempt or otherwise, taxed in this state, 2. The actual value of credits, consisting and also the other property pertaining to of bills receivable owned by them and other the business, shall be assessed at 25 per cent credits due or to become due;

of the actual value of the same, not includ3. The amount of all deposits made with ing real estate, which shall be listed and asthem by others, and also the amount of bills sessed as other real estate. payable;

February 25, 1862 (12 Stat. at L. 346, chap. | the amount of capital stock paid in, or se33, U. S. Comp. Stat. 1901, p. 2480). The cured to be paid in, and their surplus earnsubstance of this enactment is embodied ings." The validity of taxation under the in § 3701 of the Revised Statutes, and has amended law was considered in the Bank usually, if not invariably, since 1862, been Tax Case (New York ex rel. Bank of Cominserted in acts authorizing the issue of monwealth v. Tax & A. Comrs.) 2 Wall. bonds. That the tax upon the property of 200, 17 L. ed. 793. There it was insisted a bank in which United States securities that the tax was imposed upon the corare included is beyond the power of the poration, and not its property, and that state, and, what perhaps is of lesser mo- the statute only prescribed a measure of ment, within the prohibition of the statu- the amount annually to be paid for the tory law, hardly needs to be proved by au- franchises. But the court held that the thority. But the authority is clear and amendment simply changed the method of conclusive. With the beginning of the fixing the amount of capital, and that the Civil War large amounts of the national se- tax was upon the capital, which, so far as curities began to be issued. So important invested in national securities, was beyond it was to sustain the national credit that, as the power of the state. we have seen, Congress for the first time The case at bar cannot be distinguished began the practice of accompanying the in principle from these cases. In the first authority for their sale with an express case the tax was on the capital stock at its prohibition of their taxation by the states. actual value; in the second case on the The state banks often invested a large part amount of the capital stock and the surplus or the whole of their resources in these se- earnings; and, in the case at bar, on curities, and the question of their liability the shares of the stock, taking into acto state taxation on their capital and sur- count the capital, surplus, and undivided plus thus invested at once arose. The Bank earnings. It would be difficult for the of Commerce, incorporated under the laws most ingenious mind and the most accomof New York, invested all its capital, ex- plished pen to state any distinction becept its investment in real estate, in Unit-tween these three laws, except in the maned States bonds. Under the authority of a ner by which they all sought the same end, law requiring that the capital stock should—the taxation of the property of the bank. be assessed at its actual value a tax was The slight concealment afforded by the levied. The court of appeals of New York omission of the property eo nomine is not sustained the tax so far as it applied to sufficient to disguise the fact that, in efsecurities issued before the act of 1862, fect, it is the property which is taxed. If, expressly declaring their exemption, and an included in that property, it is discovered nulled it so far as it applied to securi- that there is some which is entitled by Fedties thereafter issued. The case came here eral right to an immunity, it is the duty of on a writ of error. New York ex rel. Bank this court to see that the immunity is reof Commerce v. Tax Comrs. 2 Black, 620, spected. 17 L. ed. 451. This court held the tax in- It is, however, contended that although valid on all securities, without even al- these cases have not been overruled, disluding to the act of 1862, but basing the de- tinctions have been drawn in later cases cision entirely upon the constitutional in which are applicable here, and withdraw ability of a state to affect, by taxation, the the cases before the court from their auexercise of the sovereign power of the na- thority. These later cases must therefore tion in borrowing money on its credit. This be considered and their exact effect dewas the rule specifically declared in Weston termined. We may quickly put out of view v. Charleston, as an application of the gen-those not relied upon here, in which it has eral rule of the immunity from state control been held that the state may levy a tax of the operations of the Federal government upon the value of the franchise of corporain the region of its supremacy. To the ar- tions created by it, or upon the right of gument, which was strenuously urged, that succession to property on the death of its the tax was not upon the securities, but owner, without first deducting the amount upon the capital of the bank, and that of United States securities owned by the thereby the case was distinguished from corporation whose franchise is taxed, or by Weston v. Charleston, the court, by Mr. the estate transmitted under the inheritJustice Nelson, replied: “We cannot yield ance laws of the state. Society for Sav. our assent to the soundness of the distinc.ings v. Coite, 6 Wall. 594, 18 L. ed. 897; tion."

Provident Inst. v. Massachusetts, 6 Wall. The state of New York then amended its 611, 18 L. ed. 907; Hamilton Mfg. Co. v. law, and enacted that banks should be Massachusetts, 6 Wall. 632, 18 L. ed. 904; "liable to taxation on a valuation equal to Home Ins. Co. v. New York, 134 U. S. 594,