33 L. ed. 1025, 10 Sup. Ct. Rep. 593; Plum- | national banks "held by any person or body mer v. Coler, 178 U. S. 115, 44 L. ed. 998, corporate” under certain conditions not nec20 Sup. Ct. Rep. 829. The theory of all essary here to be stated. Acting under the these cases is that the taxes are not im- authority of this law, the state of New posed upon the assets of the corporation or York assessed the shares of Van Allen in the property of the decedent, but, in the the First National Bank of Albany. At one case, upon the franchise granted by the that time all the capital of the bank was state, and, in the other case, upon the invested in United States securities, and it right of succession to property on the was asserted that a tax upon the individual death of the owner which is conferred by in respect of the shares he held in the tlie state.

bank was, unless the holdings in United But another line of cases cannot so easily States securities were deducted, a tax upbe dismissed. They were relied upon by on the securities themselves. But a mathe supreme court of Iowa, and the respect jority of the court held otherwise, saying due to the opinion of that court demands by Mr. Justice Nelson: "The tax on the that the reasons why we think those cases shares is not a tax on the capital of the do not apply to the case at bar should be bank. The corporation is the legal owner of fully stated. These cases relate to the all the property of the bank, real and perright of the state to tax at their full value sonal; and, within the powers conferred shares of stock as the property of the upon it by the charter, and for the purposes shareholders. Although the states may not, for which it was created, can deal with the in any form, levy a tax upon United States corporate property as absolutely as a prisecurities, they may tax, as the property vate individual can deal with his own. of their owners, the shares of banks and

The interest of the shareholder other corporations whose assets consist in entitles him to participate in the net profits whole or in part of such securities, and, in earned by the bank in the employment of valuing the shares for the purposes of tax- its capital, during the existence of its ation, is not necessary to deduct the value charter, in proportion to the number of his of the national securities held by the cor- shares; and, upon its dissolution or termiporation whose shares are taxed. The right nation, to his proportion of the property to tax the shares of national banks arises that may remain of the corporation after by congressional authority, but the right the payment of its debts. This is a disto tax shares of state banks exists inde tinct, independent interest or property, held pendently of any such authority, for the by the shareholder like any other properstate requires no leave to tax the holdings ty that may belong to him. Now, it is this in its own corporations. The right of such interest which the act of Congress has left taxation rests upon the theory that shares subject to taxation by the states, under in corporations are property entirely dis- the limitations prescribed." tinct and independent from the property of In an opinion in which Justices Wayne the corporation. The tax on an individual and Swayne joined, Chief Justice Chase disin respect to his shares in a corporation is sented from the judgment upon the ground not regarded as a tax upon the corpora- that taxation of the shareholders of a cortion itself. This distinction, now settled poration in respect of their shares was an beyond dispute, was mentioned in M'Cul actual though an indirect tax on the proploch v. Maryland, 4 Wheat. 316, 4 L. ed. 579, erty of the corporation itself. But the diswhere, in the opinion of Chief Justice Mar- tinction between a tax upon shareholders shall declaring a tax upon the circulation of and one on the corporate property, although a branch bank of the United States beyond established over dissent, has come to be the power of the state of Maryland, it was inextricably mingled with all taxing syssaid that the opinion did not extend “to a tems, and cannot be disregarded without tax imposed on the interest which the citi- bringing them into confusion which would zens of Maryland may hold in this insti- be little short of chaos. tution, in common with other property of

The Van Allen Case has settled the law the same description throughout the state.” that a tax upon the owners of shares of The distinction appears, however, to have stock in corporations, in respect of that been first made the basis of a decision in stock, is not a tax upon United States seVan Allen v. Assessors (Churchill v. Utica), curities which the corporations own. AC3 Wall. 573, 18 L. ed. 229. The national bank cordingly, such taxes have been sustained act, as amended in 1864 [13 Stat. at L. by this court, whether levied upon the 112, chap. 106] (Rev. Stat. § 5219, U. S. shares of national banks by virtue of the Comp. Stat. 1901, p. 3502), permitted the congressional permission, or upon shares states to include in the valuation of per- of state corporations by virtue of the powsonal property for taxation the shares of er inherent in the state to tax the shares of such corporation. The tax assessed to here is one of power, and not of economics. shareholders may be required by law to be If the state has not the power to levy this paid in the first instance by the corporations tax, we will not inquire whether another themselves, as the debt and in behalf of the tax, which it might lawfully impose, would shareholder, leaving to the corporation the have the same ultimate incidence. Preciseright to reimbursement for the tax paid ly the same argument was made and rejectfrom their shareholders, either under some ed in Owensboro Nat. Bank v. Owensboro, express statutory authority for their recov- 173 U. S. 664, 43 L. ed. 850, 19 Sup. Ct. ery or under the general principle of law Rep. 537. There it appeared that a tax upthat one who pays the debt of another, at on the intangible property of a national his request, can recover the amount from bank had been levied under the name of a him. First Nat. Bank v. Kentucky, 9 Wall. franchise tax. Such a tax upon one of the 353, 19 L. ed. 701; Lionberger v. Rouse, 9 agencies of the national government is beWall. 468, 19 L. ed. 721; First Nat. Bank yond the power of the state. But it was v. Chehalis County, 166 U. S. 440, 41 L. contended that, although the tax was not ed. 1069, 17 Sup. Ct. Rep. 629; Merchants' in form upon shares in the hands of share& M. Nat. Bank v. Pennsylvania, 167 U. S. holders (a tax lawful by the permission Con461, 42 L. ed. 236, 17 Sup. Ct. Rep. 829; gress has given), it was the equivalent of Cleveland Trust Co. v. Lander, 184 U. S. such a tax. To this contention the court, 111, 46 , L. ed. 456, 22 Sup. Ct. Rep. 394. by Mr. Justice White, replied"To be

. The theory sustaining these cases is that equivalent in law involves the proposition the tax was not upon the corporations' that a tax on the franchise and property holdings of bonds, but on the shareholders' of a bank or corporation is the equivalent holdings of stock; and an examination of of a tax on the shares of stock in the them shows that in every case the tax was names of the shareholders. But this propoassessed upon the property of the share- sition has been frequently denied by this holders, and not upon the property of the court, as to national banks, and has been corporation. There is nothing in them overruled to such an extent in many other which justifies the tax under consideration cases relating to exemptions from taxation, here, levied, as has been shown, on the cor- or to the power of the states to tax, that porate property. Without further review to maintain it now would have the effect of the authorities it is safe to say that the sto annihilate the authority to tax in a distinction established in the Van Allen Case multitude of cases, and as to vast sums has always been observed by this court, of property upon which the taxing power and that, although taxes by states have is exerted in virtue of the decisions of this been permitted which might indirectly af- court holding that a tax on a corporation fect United States securities, they have or its property is not the legal equivalent never been permitted in any case except of a tax on the stock, in the names of the where the taxation has been levied upon stockholders.

If the mere coinciproperty which is entirely distinct and in-dence of the sum of the taxation is to be dependent from these securities. On the allowed to frustrate the provisions of the other hand, whenever, as in these cases, the act of Congress, then that act becomes tax has been upon the property of the cor- meaningless and the power to enforce it in poration, so far as that property has con- any given case will not exist.

The sisted of such securities, it has been held argument that public policy exacts that void.

where there is an equality in amount beOne other consideration only needs to be tween an unlawful tax and a lawful one, noticed. It is said that where a tax is the unlawful tax should be held valid, does levied upon a corporation, measured by not strike us as worthy of serious conthe value of the shares in it, it is equivalent sideration.” These words apply with equal in its effect to a tax (clearly valid) upon force to the case at bar. Moreover, it may the shareholders in respect of their shares, be said that, if given the effect claimed, because, being paid by the bank, the burden the consideration that the ultimate burden falls eventually upon the shareholders in of the tax is distributed upon the shareproportion to their holdings. It was upon holders in proportion to their holdings this view that the lower court rested its would have saved the taxes condemned in opinion. But the two kinds of taxes are the Bank of Commerce Case and the Bank not equivalent in law, because the state has Tax Case, and, indeed, all taxes assessed the power to levy one, and has not the

upon the property of corporations, and power to levy the other.

The question the immunity from state tax of United *This fact, assumed, but not stated, in States bonds owned by corporations would Cleveland Trust Co. v. Lander, is shown by indirectly be absolutely destroyed. the record to exist.

We regret that we are constrained to dif

.

.

v.

fer with the supreme court of the state | personis, and Messrs. E. B. McClanahan and on a question relating to its law. But, S. H. Derby for defendant in error Ables. holding the opinion that the law directly taxes national securities, our duty is clear. Mr. Justice Holmes delivered the opinion If, by the simple device of adopting the of the court: value of corporation shares as the measure This is a writ of error to review a judgof the taxation of the property of the cor- ment for the defendants in a suit upon a poration, that property loses the immunities contract.

contract. 16 Haw. 332, 485. At the trial which the supreme law gives to it, then na- a nonsuit was ordered, subject to exceptions tional securities may easily be taxed when taken by the plaintiff. A motion for a new ever they are owned by a corporation, and trial was made but was dismissed, and this the national credit has no defense against dismissal also was excepted to. The sua serious wound.

preme court held that the former exceptions Judgments reversed, and cases remanded were presented too late, but that the latter for further proceedings not inconsistent was open and raised the question whether with this opinion.

the judgment of nonsuit was right as mat

ter of law. It discussed this question and The CHIEF JUSTICE, Mr. Justice Harlan, sustained the judgment. This was on Deand Mr. Justice Peckham dissent.

cember 14, 1904. In January, 1905, a petition for rehearing was filed; it was entertained by the court, and, after argument,

was denied on March 6, 1905. The defendTHOMAS VILNER HARRISON, Piff. in Err.,

ants in error now move to dismiss, the main ground being that the act of March 3,

1905, chap. 1465, § 3 (33 Stat. at L. 1035), J. A. MAGOON, F. B. McStocker, Dorothea

Emerson, L. C. Ables, T. E. Cowart, J. u. amending the act of April 30, 1900, chap. Kirkpatrick, A. E. Powter, J. Wolfenden, 339, § 86 (31 Stat. at L. 141, 158), granting and George D. Moore.

writs of error, etc., does not apply.†

It is answered for the plaintiff in error Error to Hawaiian supreme court-effect of that, as the petition for rehearing was enamending jurisdictional statute.

tertained and acted upon by the supreme A writ of error from the Federal court of the territory, the time to be conSupreme Court to the supreme court of the sidered is the date when the petition was territory of Hawaii which would not lie denied, and that that was after the statute when final judgment was entered cannot be sustained as an exercise of the appellate went into effect. Voorhees v. John T. Noye jurisdiction conferred by the act of March Mfg. Co. 151 U. S. 135, 38 L. ed. 101, 14 Sup. 3, 1905 (33 Stat. at L. 1035, chap. 1465), Ct. Rep. 295; Northern P. R. Co. v. IIolmes, $ 3, amending the act of April 30, 1900 (31 155 U. S. 137, 39 L. ed. 99, 15 Sup. Ct. Rep. Stat. at L. 141, 158, chap. 339), § 86, be- 28. No doubt the decisions cited and others cause a petition for rehearing, which the show that where a right to take the case territorial supreme court entertained and acted upon, was not denied by that court up exists at the time of the original judguntil after the later statute went into ment, the time limited for the writ of ereffect.

ror on appeal does not begin to run until [No. 107.]

the petition for rehearing is disposed of.

But there are limits to even that rule. Submitted March 18, 1907. Decided April When an appeal in bankruptcy, required by 22, 1907.

general orders in bankruptcy, 36, 1 2, to

tAct of April 30, 1900, chap. 339, § 86: N ERROR to the Supreme Court of the I

The laws of the United States reTerritory of Ilawaii to review a judgment which overruled exceptions from the lating to appeals, writs of error, removal of Circuit Court of the First Circuit in that causes, and other matters and procredings as territory, which had ordered a nonsuit in between the courts of the United States and

the courts of the several states, shall govern an action on a contract. Dismissed for in such matters and proceedings as between want of jurisdiction.

the courts of the United States and the See same case below, 16 Haw. 332; on courts of the territory of Hawaii. rehearing, 16 Haw. 485.

Amended by act of March 3, 1905, chap. The facts are stated in the opinion.

1465, § 3, by adding at the end of the secMr. Thomas Milner Harrison, in propria tion: “Providerl, That writs of error and persona, and Messrs. David L. Withington, appeals may also be taken from the supreme A. G. M. Robertson, and W. R. Castle for Supreme Court of the United States in all plaintiff in error.

cases where the amcunt involved, exclusive Messrs. J. Alfred Magoon, F. B. McStock- of costs, exceeds the sum or value of five er, and Mrs. Dorothea Emerson, in propriis' thousand dollars."

27 S. C.-37.

be brought within thirty days after the See same case below, 75 C. C. A. 358, 144 judgment or decree, was not brought with Fed. 356. in that time, the fact that a petition for The facts are stated in the opinion. rehearing was filed within the time re- Messrs. Frank Hagerman and Herbert S. quired by the court below, but after the Hadley for petitioners. thirty days, was held not to prolong the Messrs. James C. Jones, J. J. Darlington, time for appeal. “The appellant could not Jones, Jones, & Hocker, and Boyle, Guthrie, reinvest himself with that right by filing & Smith for respondent. a petition for rehearing.” Conboy v. First Nat. Bank, 203 U. S. 141, 145, 51 L. ed. 128, Mr. Justice Harlan delivered the opinion 27 Sup. Ct. Rep. 50. If, at the time of final of the court: judgment, there is no right of appeal what- This is a suit upon an accident policy ever, it is perhaps even plainer that a of insurance issued November 30, 1900, by party cannot evoke a new one by filing a the Ætna Life Insurance Company of Hartpetition for rehearing, even if, by accident, ford, Connecticut, upon the life of James it is kept along until an act giving an ap- Whitfield, a resident of Missouri. The polpeal is passed. Whether, in any event, a icy specifies various kinds of injuries; also, writ of error would lie in this case, it is the amount that will be paid by the comunnecessary to decide.

pany on account of such injuries respecWrit of error dismissed.

tively. It provides: "If death results solely from such injuries within ninety days, the said company will pay the principal

sum of $5,000 to Amanda M. S. Whitfield, AMANDA S. WHITFIELD and the State of his wife, if living; and, in event of the Missouri at the Relation of HERBERT S. death of said beneficiary before the death of HADLEY, Attorney General, Petitioners,

the insured, to the executors, administray. ÆTNA LIFE INSURANCE COMPANY OF tors, or assigns of the insured.” The polHARTFORD, Connecticut.

icy recites that it was issued and accepted

by the assured, James Whitfield, subject Constitutional law-police power-insurance to certain conditions, among which are -suicide as defense.

these: “... 5. In event of death, loss 1. The exclusion of suicide as a defense of limb or sight, or disability due to inin suits on policies of life insurance which juries intentionally inflicted upon the inis effected by Mo. Rev. Stat. 1879, § 5982, sured by any other person (except assaults unless such suicide was contemplated at the committed for the sole purpose of burtime application was made for the policy, is a legitimate exertion of power by glary or robbery), whether such other perthe state. *

son be sane or insane, or under the influence Insurance-suicide as defense.

of intoxicants or not; or due to injuries re2. A policy of accident insurance issued ceived while fighting or in a riot; or due after the passage of Mo. Rev. Stat. 1879, to injuries intentionally inflicted upon the § 5982, providing that in all suits on poli-insured by himself; or due to suicide, sane cies of insurance on life it shall be no de- or insane; or due to the taking of poison, fense that the insured committed suicide voluntarily or involuntarily, or the inhalunless it be shown that he contemplated suicide when applying for the policy, cannot ing of any gas or vapor; or due to injuries lawfully restrict the liability of the insur- received while under the influence of inance company to one tenth of the principal toxicants or narcotics,—then, in all such sum insured, in the event of suicide not con- cases referred to in this paragraph, the templated by the insured at the time appli- limit of this company's liability shall be cation was made for the policy.

one tenth the amount otherwise payable [No. 258.]

under this policy, anything to the contrary in

this policy notwithstanding. Argued April 12, 1907.

Decided April

8. The maximum liability of the 22, 1907.

company hereunder in any policy year shall N WRIT of Certiorari to the United not exceed the principal sum hereby in

States Circuit Court of Appeals for the sured, and in no event will claim for weekEighth Circuit to review a judgment which ly indemnity be valid if claim is also made affirmed a judgment of the Circuit Court for any of the stated amounts herein profor the Western District of Missouri, limit- vided for specified injuries, based upon the ing the recovery on a policy of accident in- same accident and resulting injuries.” surance because of the suicide of the in- The insured died April 7th, 1902, the sured to one tenth of the principal sum plaintiff, his widow and the beneficiary of named in the policy. Reversed and re- the policy, alleging in her petition that he manded for further proceedings.

died "from bodily injuries, effected through *Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, $ 1153,

.

external, violent, and accidental means, and that the insured committed suicide, unless by a pistol shot.” The petition also states it shall be shown to the satisfaction of the that the company, after receiving proofs court or jury trying the cause, that the inas to the death of the insured, offered to sured contemplated suicide at the time he pay $500 as the full amount due by $ 5 made his application for the policy, and of the policy, but refused to pay more. The any stipulation in the policy to the conplaintiff asked a judgment for $5,000 with trary shall be void.” Mo. Rev. Stat. 1879, interest from the date of the death of the 8 5982; Id. 1889, $ 5855; Id. 1899, $ 7896. insured.

Assumingas upon the record we must The company, in its answer, denied lia- do--that, within the true meaning of both bility for the whole principal sum, and the statute and the policy, the insured comaverred, among other things, that, by the mitted suicide, without having contemplatterms of the policy, "in the event death is cd self-destruction at the time he made caused by intentional injuries inflicted by application for insurance, the question the insured or any other person, whether arises whether the contract of insurance such person be sane or insane, or while limiting the recovery to one tenth of the fighting or in a riot, or by suicide, sane or principal sum specified was valid and eninsane, or by poison, or by inhaling gas or forceable. vapor, or while under the influence of intoxi- 1. That the statute is a legitimate exercants or narcotics, then the amount to be tion of power by the state cannot be sucpaid shall be one tenth of the principal sum, cessfully disputed. Indeed, the contrary or $500;

that said James Whit- is not asserted in this case, although it is field died from bodily injuries caused by a suggested that the statute "seemingly enpistol shot intentionally fired by himself courages suicide, and offers a bounty therefor the purpose thereby of taking his own for, payable, not out of the public funds of life; that the cause of the death of said the state, but out of the funds of insurance Whitfield was suicide." It was not averred companies." There is some foundation for in the answer that the insured contemplated this suggestion in a former decision of this suicide when applying for a policy.

court, in which it was held that public The plaintiff demurred to the answer. policy, even in the absence of a prohibitory The demurrer was overruled, and the plain- statute, forbade a recovery upon a life tiff filed a reply, admitting that the in- policy, silent as to suicide, where the insured "died from bodily injuries caused by sured, when in sound mind, wilfully and a pistol shot fired by himself, and the deliberately took his own life. Ritter v. cause of his death was suicide,” but aver- Mutual L. Ins. Co. 169 U. S. 139, 154, 42 ring that the shot was fired and the sui- L. ed. 693, 698, 18 Sup. Ct. Rep. 300. But cide committed at a time when the insured the determination of the present case dewas "incapable of realizing or knowing, pends upon other considerations than those and when he did not realize or know, what involved in the Ritter Case. An insurance he was doing or the consequences of his company is not bound to make a contract act."

which is attended by the results indicated The case—a jury having been waived in by the statute in question. If it does busiwriting—was tried by the court upon an ness at all in the state, it must do so subagreed statement of facts, one of which was ject to such valid regulations as the state that the insured died “from bodily injuries may choose to adopt. Even if the statute caused by a pistol shot intentionally fired in question could be fairly regarded by the by himself, for the purpose of thereby tak- court as inconsistent with public policy or ing his own life; that the cause of the sound morality, it cannot, for that reason death of said Whitfield was suicide." alone, be disregarded; for it is the province

The circuit court held that the plaintiff of the state, by its legislature, to adopt was not entitled to recover $5,000, but such a policy as it deems best, provided it only $500, and judgment for the latter does not, in so doing, come into conflict with amount was entered. 125 Fed. 269. That the Constitution of the state or the Conjudgment was affirmed by the circuit court stitution of the United States. There is no of appeals, 75 C. C. A. 358, 144 Fed. 356, such conflict here. The legislative will, and the case is here upon writ of certiorari. within the limits stated, must be respected,

When the policy in suit was issued, and if all that can be said is that, in the opinalso when the insured committed suicide, ion of the court, the statute expressing that it was provided by the statutes of Mis- will is unwise from the standpoint of the souri that "in all suits upon policies of in- public interests. See Northwestern Nat.

on life hereafter issued by any L. Ins. Co. v. Riggs, 203 U. S. 243, 51 L. ed. company doing business in this state, to a 168, 27 Sup. Ct. Rep. 126. citizen of this state, it shall be no defense 2. Did the courts below err in adjudging