158

FEDERAL REPORTER,

vol. 44. ;

not think ihe&>l1rt 'Mn go 'beyond the plEladings and find even from statements of Cotmsel, or, -presume that the iOsu1anoo policies given defendllntbj pJitintiffs'had a proi-ala clausetherein. -This court) then, up ·to this time,it would appear; has jurisdiction to try this caUSe as to all thepillintiffs. It was hot necessary to make arbitrators parties to tbisaetioh. Arbitrators constitute a tribunalseleeted by tbecontendi,ng parties which in its nature is'judicial. Most of tbe cases treat an Award in the nature of a judgment, and I cannotsee why there is any more reason for making the arbitratoI'sparties to this suit than tbere would be in making a court a party to an action to set aside its judgment.' The demurrer of defendant is overruled,and the motion of the 'phlintiffs for an injunotion pending this action will be granted until the 'further order of this court. Before issuing the injunction, the plaintiffs :must execute to' defendant, with two or more sufficient sureties, a good and sufficient bond, to be approved by this court, or a judge thereof, to secure the defendant against any loss or damage on account of the issuing of said injunction, in the sum of 375,000.

FIRST NAT. BANK: OF WILMINGTON

v.

HERBERT;

State Treasurer.

(Oirowlt Court, D. Dewware. October. 1890.)
NATIONAL BANKS-TAXATION, OF STOCK.,

Under Rev. St. U. S. § 5219, providing that shares of national bank stock may be taxed as part of the personalty of the owner, and that each state may tax them in its own manner, except that the taxation shall not be at a greater rate than is imposed on other moneyed oapital owned by citizens of the state, a state may tax national bank shares held by Ita corporate or individual citizens as an investment, subject to the restriotlon that the tax shall not exceed the burdello upon similar property in the state. . .

In Equity. Levi O. Bird, Andrew E. Sanborn, and John Beggs, for complainant. Benjamin Nields, for defendant.
McKENNAN, J. This suit is brought to relieve the complainant from the levy and collection of a tax imposed by the state of Delaware upon <lertain of its shares as anational bank, incorporated under the laws of the United States, and held by corporate or individual citizens of the state. This question is to be resolved by the true meaning and construction of the act of congress defining and limiting the power of the states in taxing national bank shares. The only portion of the act of congress to which is necessary to refer at length is section 5219 of the Revised which is as follows: "Nothing herein shall prevent all the sbares in any association from being included in the valuation of. the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of thestatewithin which the. association is locatt'd; but the legislalure of each state .may determine and .direct the manner and place of taXing all the shares of national banking as-

FIRST liAr. BA.;NK QF WIJ,MINGTON '/7. HERBERT

[59

sociations located within the state, subject only to the two restrictions,-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 that the shares of any national banking association owned by non-residents of any state shall be taxed in the city or toWn where the bank is located, and'not elsewhere. Noth· ing herein shall he construed to exempt the real property of associations from eithel' state, county, or municipal taxes, to the same extent, according 'to its value, as other real property is taxed." " The only property in the, state of Delaware which ill the subje.ct of taxation is real estate, live-stock, and national bank shares; and the object of this section of the act of congress, as was said by Mr. Justice MILLER in ,People v. Weaver, 100 U. S. 539, was to confer upon the states a power which they would not otherwise have had, and limiting its, exercise so as to prevent a discrimination against national bank shares as compared with other moneyed capital. "In 'permitting the states totax these shares,-that is, the shares of national banks,-it was that the authorities mig;ht be disposed to tax the capital iuvested- in these banks oppressively." So therefore in Mercantile Nat. Bank v.City of New Ym'k, 121 U. S. 155,7 Sup. Ct. Rep. 826, where the construction and meaning of the act of congress came before the supreme court, aud it was necessary to interpretit as it related to the taxation of national bank shares, the court-says: "A tax upon the money of individuals invested in the form of shares of stock in national banks would diminish their value as an investment, and drive the capital so invested from this employment, if, at the same time, siro.. iIar.in vestments and similar employments under the authority of state laws were exempt from an equal burden." The main purpose of congress, therefore, in fixing limits to state tax.. ation on investments in the shares of national banks, was to render it im.. possible for tIle state, in levying such a tax, to create and foster an un.. equal and unfriendly by favoring institutions or individuals carrying onasimilar business .and operations and investments of a like character. The language of the actof congress is to be read in the light of this policy. Applying this rule of construction, we are led, in the first place, to consider the meaning of the words" other moneyed capital," as used in the statute. Of course it includes shares in national banks; the use of the, word "other" requires that. If bank shares were not moneyed capital, the word "other" would be without significance. This case may then be regarded as impressing a determinate import upon the words of the act of congress. By this judicial definition of them, "moneyed capital" means national bank shares held by individuals as an investment, :;ind the tax cQIllplained of is subject to the restricted power of the state to impose a tax upon it, not exceeding the burden upon similar prop.. erty in the state.. It is undeniable that national bank shares are subject only to a tax ofone-fourth of 1 per cent., which is the same rate im posed upon each share of the cash value of the shares of the capital stock of everybankJng institution incorporated by or organized under the laws Qfthe state of Delaware. It follows, therefore, that the complainant is not t() the relief p.rayeqfor, and its bill is dismissed, with costs; and. it !s ,!l9,

160

FEDERAL REPORTER,

vol. 44. Collector.

DIECKERHOFF

et al. v.

ROBERTSON,

(CircuU Court, So D. New York. November 25, 1890.)
CtrSTOMIl DUTIES-CLASSIFICATION-"PINS, SOLID HEAD OR OTHER. II

"Mourning pins, " "hat pins, " "bonnet pins," "shawl pins," being, articles composed of a IIteelol' hardened-iron shank, varying in length according to the specific designation of the article. from one inch to five inches, pointed at (>De end, and having around or cut head of glass or jet, either polished or dull, and "safety pins," being an article composed of brass. having a shank of about one inch and a' quarter in length, the point being protected by a shield or guard of the same material, are "pins, solid head or other, "dutiable 30 per cent. ad valorem under Schedule C of the tariff act of March 8,1883, (Tariff Ind. par. 209,) and not "manufactures, articles, or wares not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly manufactured," dutiable at 45 per cent. ad valOTllffl, (same schedule, Tariff Ind. par. 216.)

At Law. Action to recover back duties alleged to have been illegally exacted by the defendant, collector of the port of New York. The goods involved in the present suit were imported by the plaintiffs from Germany and England in 1883 and 1884, and were invoiced in the English and German languages as "mourning pins," "hat pins," "bonnet pins," "shawl pins," and" safety pins;" and were classified by, the collector as to the mourning, hat, bonnet, and shawl pins as "manufactures of glass and steel," dutiable at 45 per cent. ad valorem, under Schedule C of the tariff act of March 3, 1883, (Tariff Ind. par. 216,) and as to the safety pins as "manufactures of brass," dutiable at 45 ppr cent. ad valorem, under the same schedule and paragraph. The plaintiffs duly protested in the <fase of each' entry, claiming the articles to be dutiable at 30 pet cent. ad valorem, under the provision of Schedule C of said tariff, (Tariff Ind. par. 209,) as "pins, solid head or other," and duly appealed from the cision of the collector to the secretary of the treasury, who affirmed the classification of the collector. The plaintiffs' witnesses gave testimony showing that the articles in question, with the exception of the safety pins, were manufactured of steel or hardened iron, with glass or jet heads, the mourning pins varying in hmgth from one to two inches, the shawl pins being somewhat longer, and the hat pins reaching, as to some of the articles included in the invoices, a length of five inches; that the mourning pins were used for the purpose of pinning articles of wearing apparel of black or dark colors; that the shawl pins were used for fastening ladies'shawls or belts; and that the hat or bonnet pins were used to fasten ladies' hats or bonnets upon the head; that the safety pins included in the invoices were an article of brass having a sharpened shank of about one and a quarter inches in length, furnished with a shield or guard of the same material, not having strictly any head at 'all, but used for many of the purposes, in fastening the clothing of children and adults, to which the ordinary pin of wholesale and retail trade was also produced a nurnber of witnesses from the used. The wholesale trade in the city of New York.. who testified that the general designation of "pins," as understood in trade and commerce in this