am of opinion that the rule should not be extended, and that the carrier should be held liable only for negligence. I admit that the law should require, and does require, the exercise of a very high degree of care on the part of a carrier who undertakes the transportation of wild animals of a savage nature -a degree of care commensurate with the danger to be apprehended-but further than this it should not go.

As to the facts disclosed in the record in the case at bar, I think they presented a question for the jury, even under the rule of liability, which seems to me the proper rule as applicable to a common carrier who undertakes the transportation of wild animals. I do not think that the contributory negligence of the plaintiff was so clearly made out as to bar him from a recovery as matter of law. He was a boy only nine years of age at the time the injury was inflicted, and the question whether he was sui juris would have been a question of fact for the jury unless, as appears in a statement in the charge of the learned trial judge, his counsel had conceded that he was sui juris. Notwithstanding this concession, I think that the question of his contributory negligence was proper for the consideration of the jury, and should not be determined here as a question of law.

For these reasons I vote for a reversal of the judgment, and a new trial.

CULLEN, C. J. (dissenting). I dissent from the decision about to be made. No obligation whatever rested upon the defendant as a common carrier to transport wild animals. "A common carrier is not bound to receive dangerous articles, such as nitroglycerin, dynamite, gunpowder, aqua fortis, oil of vitriol, matches, etc. California Works v. R. R. Co., 113 Cal. 329, 45 Pac. 691, 36 L. R. A. 648; Hutchinson on Carriers, § 113; 2 Rorer on Railroads, § 1231; 3 Wood's Railway Law, § 426. It was thus optional with the defendant to accept the powder for transportation or not. Piedmont Mfg. Co. v. C. & G. R. R. Co., 19 S. C. 353." In the Nitroglycerin Cases, 15 Wall. (U. S.) 524, 21 L. Ed. 206, the defendant, an express company, was held exempt from liability for damage done the property of third parties by the explosion of nitroglycerin which the defendant had transported, it being shown that the defendant was ignorant of the contents of the package, and there was nothing in the appearance of the package to cause suspicion of its dangerous character; otherwise, there is a strong intimation in the opinion that the defendant would have been liable. Of course, the same principle of law controls the transportation of wild animals, snakes, and the like. Here the defendant knew the character of the animal he was transporting, and without any legal obligation resting upon him did so voluntarily, presumably for a sufficient compen sation. At the time of the injury to the plain

tiff the animal was in the possession, control. and custody of the defendant to the same extent as other property transported by him. Its possession in this case is emphasized by the fact that at the time he was detaining the animal on the wharf as security for the payment of the freight due for its carriage. Under these circumstances he occupied exactly the same position and was under the same liability as any other owner or harborer of a wild animal. The charge of the trial court that the defendant was bound to transport the animal was erroneous, but this error was in favor of the defendant instead of to his prejudice. It, therefore, furnishes no ground for reversal.

As the proposition that a common carrier is not bound to carry dangerous articles seems to be challenged, I may add that, while decisions on the point may be few, the proposition seems to be accepted as unquestioned both by text-writers and in judicial opinions. It is so stated in Angell on Carriers, § 125. See, also, 2 Redfield on the Law of Railways (6th Ed.) p. 151 et seq., for a review of the law. In answer to the suggestion that the needs for high explosives in engineering, mining, and similar works, and the establishment of zoological gardens in great cities, should alter the rule, I think it overlooks the proposition that a common carrier is not necessarily a carrier of all goods that may be offered to him, but only of such as he holds himself out as willing to carry. Thus, a carrier may assume the business of transporting coal, brick, and such heavy materials, without undertaking to carry dry goods, jewelry, and valuable packages, and, vice versa, one may be a carrier of passengers and light and valuable packages without incurring any obligation to carry freight. In Lake Shore, etc., R. R. Co. v. Perkins, 25 Mich. 329, 12 Am. Rep. 275, it was held that a common carrier was not bound by the common law to transport live stock, and, if such obligation rested upon it, it was because it voluntarily assumed the business. In Hincley v. N. Y. C. & H. R. R. R. Co., 3 Thomp. & C. 281, the General Term of the Fourth Department thus stated the law: "A carrier of passengers is not obliged to carry freight, and a carrier of particular kinds or descriptions of freight is not obliged to carry any other. He is only obliged to carry such freight as he holds himself out for and proclaims and professes himself ready and willing to carry, and he may prescribe the terms, regulations, and rules, within reasonable limits, upon which he will carry freight. A general common carrier may refuse to carry freight for which he has not accommodation, or which he thinks hazardous or dangerHe may refuse to carry gunpowder, nitroglycerin, petroleum, or the products of petroleum, naphtha, benzine, and benzole, or he may stipulate as to the manner, times and mode, and risks attendant upon the receipt and transportation of such explosive and

ous.

combustible articles." This case was affirmed in this court. 60 N. Y. 644. Doubtless the carrier may lawfully carry wild animals or dangerous substances if he so elects, but I am at a loss to see how that fact tends to limit his liability to third persons. Every reason suggested--the necessity for explosives, the establishment of zoölogical gardens, etc. is just as strong an argument in favor of limiting the liability of owners and possessors of wild animals or dangerous substances as it is in favor of limiting the liability of carriers, yet it is conceded by my Brother WILLARD BARTLETT that the law in this state as to such owner or possessor remains in full force, and in no respect relaxed. Quilty v. Battie, 135 N. Y. 201, 32 N. E. 47, 17 L. R. A. 521; Hahnke v. Friederich, 140 N. Y. 224, 35 N. E. 487. In the Quilty Case a married woman was held liable for suffering her husband to keep his (not her) vicious dog in her house. Surely, considering the advantage of, if not necessity for, domestic harmony, the woman in the case cited was entitled to at least as charitable a judgment as the defendant in this case.

The judgment of the Appellate Division should be affirmed, with costs.

EDWARD T. BARTLETT, HAIGHT, and HISCOCK, JJ., concur with GRAY, J. WILLARD BARTLETT, J., concurs in result in opinion, with whom WERNER, J., concurs. CULLEN, C. J., reads dissenting opinion.

Judgment reversed, etc.

(191 N. Y. 88)

PEOPLE ex rel. BRIDGEPORT SAVINGS BANK v. FEITNER et al., Tax Com'rs. (Court of Appeals of New York. Jan. 31, 1908.) 1. TAXATION - EXTENT OF POWER-NATIONAL BANKS.

A state has no power to tax national banks without the consent of Congress, since they are agencies of the federal government, and the power to tax involves the power to destroy.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 23-30.]

2. SAME-NATIONAL BANKS-STOCK.

Rev. St. U. S. § 5219 [U. S. Comp. St 1901, p. 3502], provides that shares of national banks may be taxed by state authority, subject to the restriction that the taxation shall not be at a greater rate than is assessed on other moneyed capital in the hands of individual citizens of such state. Tax Law, Laws 1896, p. 805, c. 908, § 23, as amended by Laws 1901, p. 1349, c. 550, provides that the fiscal officer of every bank shall report to the assessor the amount of its authorized capital stock, number of shares, and their par value, the amount of stock paid in, amount of surplus and undivided profits, and a list of stockholders and their respective holdings. Laws 1896, p. 806, c. 908, § 24, as amended by Laws 1901, p. 1350, c. 550, provides that the rate of tax on bank stock shall be 1 per cent. on the value thereof, ascertained by adding together the amount of the capital stock, surplus, and undivided profits, and dividing the result by the number of shares outstanding, provided that the rate shall not be greater than that assessed upon other moneyed capital in the hands of in

dividual citizens, and that the owners of the stock shall be entitled to no deduction from thre taxable value thereof, because of their personal indebtedness. Held, that an assessment based upon sections 23 and 24 was not void as being a discrimination against national bank stock, within Rev. St. U. S. § 5219, because no deduction of debts was allowed, as is permitted in the case of other corporations and individuals. [Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 30.]

3. SAME-MODE OF ASSESSMENT OF NATIONAL BANK STOCK.

The state is not obliged to apply the same system to the taxation of national banks that it uses in the taxation of other property, provided no injustice, inequality, or unfriendly discrimination is inflicted upon them, but may weigh advantages and disadvantages and substitute a low flat rate of taxation, an advantage which other property does not have, in place of the deduction of debts, an advantage which other owners of personal property enjoy.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 23-30.] 4. SAME-DISCRIMINATION.

The fact that a special system of taxation of national banks may not be as favorable as the general system of taxation in an isolated case does not render the system unlawful as discriminating against those institutions, so long as there is no intentional discrimination and no inequality in the effect upon their stockholders.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 23-30.]

5. SAME-REVIEW OF ASSESSMENT NECESSITY OF NOTICE.

There can be no taxation without notice and a chance to complain on account of alleged error or mistake, which notice, while it need not be personal, since it may be by general statute which is notice to all, must be such that compliance therewith is possible, and such that the taxpayer may object or protest, even if he has no grounds for doing either.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 854, 855.]

6. STATUTES CONSTRUCTION - PRESUMPTION OF CONSTITUTIONALITY.

A statute will not be adjudged to violate the Constitution if by any reasonable construction it can be given a meaning in harmony with that instrument, and as every presumption is in favor of the statute, if it is open to two constructions, one of which would obey and the other violate the Constitution, the former will be selected.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 56.]

7. TAXATION - ASSESSMENT-BANK STOCKNOTICE.

Laws

Tax Law, Laws 1896, p. 805, c. 908, § 23, as amended by Laws 1901, p. 1349, c. 550, provides that the assessment of bank stock shall be made June 1st, and requires the chief fiscal officer of every bank on or before July 1st to furnish the assessors with a statement of its assets and names of its stockholders. 1896, p. 806, c. 908, § 24, as amended by Laws 1901, p. 1350, c. 550, provides that complaints in relation to assessments of bank stock shall be heard and determined as provided in Tax Law, Laws 1896, p. 810, c. 908, § 36. Section 36 relates to assessments appearing on assessment rolls completed on or before August 1st, and provides that the assessors shall meet for the purpose of hearing complaints at the time and place specified in the notice required by section 35. Section 35 provides that notice of the completion of the assessment roll shall be given for the third Tuesday in August, but that in any city the notice shall conform to the

requirement of law regulating the time, place, and manner of revising assessments in such city. Greater New York Charter, Laws 1901, pp. 379, 381, c. 466, §§ 892, 895, provides that real and personal property, but not including bank shares, shall be assessed as of the second Monday of January, and that the time for hearing complaints and revising the assessments by the assessors shall expire May 31st. Section 907 (page 386) provides that the assessment rolls of real and personal property, other than bank shares, shall be delivered to the board of aldermen on the first Monday of July. Under the charter the aldermen estimate the tax rate to be imposed upon the taxable property of the city and levy a tax upon each piece of real or personal property, but not upon bank stock. The commissioner of taxes and assessments certifies the amount of such tax, and the persons taxable to the receiver of taxes, by the 15th of September, and the taxes thereon become payable during that month. Held, that the provision in section 35 concerning notice in cities does not apply to the assessment of bank shares in the city of New York, since it would be impossible to thus apply it without denying the taxpayer a grievance day.

8. SAME.

The scheme of taxing bank shares, not only in respect to the amount, but also as to the method and manner of its imposition, stands by itself, independent of and separate from that prescribed for the assessment and taxation of other property, and hence the charter provisions do not apply to the taxation of bank stock, but its taxation is governed by sections 35 and 36 of the general law (Laws 1896, p. 810, c. 908). 9. SAME-FAILURE TO GIVE NOTICE OF HEARING.

Where a tax law provides an opportunity to the taxpayer to be heard, but notice thereof is not given, and the assessing officers refuse to hear any complaint, the statute is not invalid on that account, but the tax is voidable, and the assessment, if attacked in due form and in due time, will be set aside for the irregularity.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 854, 855.]

10. SAME CONSTITUTIONALITY OF LAW.

C.

Tax Law, Laws 1901, pp. 1349, 1350, 550, §§ 23, 24, providing for the assessment of bank shares, is not unconstitutional as failing to provide for a grievance day or an adequate opportunity for the taxpayer to be heard.

Appeal from Supreme Court, Appellate Division, First Department.

Certiorari by the people, on the relation of the Bridgeport Savings Bank, to review the determination of Thomas L. Feitner and others, as commissioners of taxes and assessments of the city of New York, in assessing for taxation relator's shares of stock in ten national banks and one state bank. From an order of the Appellate Division (105 N. Y. Supp. 993), affirming an order dismissing the writ and confirming the assessment, relator appeals. Reversed.

Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, affirming an order made at Special Term, which dismissed a writ of certiorari and confirmed an assessment of taxes. The writ of certiorari was procured to review the determination of the respondents in assessing for the purpose of taxation certain shares of stock owned by the relator in one state bank and in ten national banks in the state of New York. The facts as both 83 N.E-38

parties unite in stating them are as follows: "The relator is a Connecticut savings bank, and owned on June 1, 1901, the bank shares enumerated in the petition. It had on that day assets and liabilities of such character and amount that it would have been exempt from any taxation under the laws of New York had it been permitted to deduct its debts in arriving at its taxable surplus, as in the case of an individual taxpayer other than a bank stockholder. The assessment of relator's bank shares was made pursuant to the amendments of sections 23 and 24 of the tax law effected by chapter 550, pp. 1349, 1350, Laws 1901. The procedure was as follows: The chief fiscal officers of these banks reported to the defendants by July 1, 1901, the condition of their banks, as required by section 23 of the tax law. In June, 1901, the relator gave notice to the defendants that it claimed to be exempt from assessment on account of its deductible debts and tendered proofs of the fact, but was refused a hearing. At some time prior to October 30, 1901, the defendants assessed these stocks against the relator at the amounts named in the peti tion, and served written notice thereof upon the respective banks on October 31, 1901. On November 13, 1901, the writ herein was issued and served. The general tax rate for 1901 in the Borough of Manhattan where the banks were located was 2.31733 per cent." The tax on bank shares is fixed by section 24 of the tax law at 1 per centum. The assessment was confirmed by the court at Spe cial Term and the Appellate Division affirmed the order; two of the justices dissenting. The relator appealed to this court.

Charles F. Brown, for appellant. Francis K. Pendleton, Corp. Counsel (George S. Coleman, of counsel), for respondents.

VANN, J. (after stating the facts as above). No state has power to tax national banks without the consent of Congress, because they are agencies of the federal government, and the power to tax involves the power to destroy. Owensboro National Bank v. Owensboro, 173 U. S. 664, 19 Sup. Ct. 537, 43 L. Ed. 850. Congress gave its consent many years ago through a statute which commits the subject, including by express mention "the manner and place" of taxing all shares of national banks located within a state to the Legislature thereof, "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 nonresidents of any state shall be taxed in the city or town where the bank is located, and not elsewhere." The statute also provides that "nothing herein shall be construed to exempt the real property of associations from either state, county or municipal taxes, to the same extent, according to its

U.

value, as other real property is taxed." S. Rev. St. § 5219 [U. S. Comp. St. 1901, p. 3502]. The state of New York exercised this power by enacting sections 23 and 24 of the tax law, by which a new and special system of assessment and taxation was created and applied solely to banks, both national and state. The method or "manner" of assessment rests primarily on a report which the chief fiscal officer of every bank is required to make to the assessors of the tax district where the bank is located, on or before the 1st day of July in each year, stating the amount of its authorized capital stock, the number of shares and the par value thereof, the amount of stock paid in, the amount of the surplus and undivided profits, a complete list of the shareholders, and the number of shares held by each. Tax Law, Laws 1901, p. 1349, c. 550, § 23.

The rule of assessment and taxation prescribed is that the rate shall be no greater than that imposed upon other moneyed capital in the state; and the rule of valuation is to add together the amount of the capital stock, surplus and undivided profits, and divide the result by the number of shares outstanding. The value of each share is thus ascertained, and the rate of tax prescribed is 1 per centum on such value, with no right to any deduction from the taxable value of the shares on account of the personal indebtedness of the owner thereof. This tax is in lieu of all other taxes for state, county, or local purposes, either on shares or on the personal property of the bank. The tax is levied by the board of supervisors of the several counties, except the county of New York, on or before the 15th day of December in each year by ascertaining through an inspection of the assessment rolls the assessed value of the shares, and mailing to the president or cashier of each bank a statement of the amount of its capital stock, surplus, and undivided profits, the number of outstanding shares, the value of each share, valued by the assessors according to the rule above prescribed, and the aggregate amount of tax to be paid by such bank. It is made the duty of each bank to collect the tax due upon its shares from the several owners thereof and to pay the same to the county treasurer, or in the city of New York to the receiver of taxes, within 15 days after the receipt of such statement. Id. § 24. The same section provides that "complaints in relation to the assessments of the shares of stock of banks and banking associations, made under the provisions of this act shall be heard and determined as provided in article two, section thirty-six of the tax law." The section closes with the proviso "that in the city of New York the statement of bank assessment and tax herein provided for shall be made by the board of tax commissioners of said city, on or before the 15th day of December in each year, and by them forthwith mailed to the respective banks and

banking associations located in said city, and a certified copy thereof sent to the receiver of taxes of said city. The tax shall be paid by the respective banks in said city to the said receiver of taxes within fifteen days after the receipt of said statement, and said tax shall be collected by the said receiver of taxes and shall be by him paid into the treasury of said city to the credit of the general fund thereof. This act is not to be construed as an exemption of the real estate of banks or banking associations from taxation." These are the only sections of the tax law that apply especially to the assessment of shares of bank stock. Among other sections that are general in their application is section 35, which provides that the assessors shall complete the assessment roll on or before the 1st day of August and at once give notice where it may be seen and examined by any person until the third Tuesday of August next following, and that on that day they will meet at a time and place specified in the notice to review their assessments. It further provides that "in any city the notice shall conform to the requirements of the law regulating the time, place and manner of revising assessments in such city."

Pro

Section 36 provides that "the assessors shall meet at the time and place specified in such notice, and hear and determine all complaints in relation to such assessments brought before them, and for that purpose they may adjourn from time to time." vision is made for taking testimony and hearing proofs relating to any complaint and the assessment to which it relates, and, finally, that "the assessors shall, after said examination, fix the value of the property of the complainant and for that purpose may increase or diminish the assessment thereof." According to the charter of the city of New York (Laws 1901, p. 1, c. 466), the assessment rolls, containing the "assessed valuations of real and personal property," are to be completed "on or before the second Monday of January in each year." Section 899. The books are open to inspection until the 1st of April, and during said interval complaints may be made and errors corrected. Sections 892, 895, 898. During the months of April and May the commissioners act upon applications, previously made, to diminish the valuation, but their power to make corrections of any kind ceases by the 1st of June. The clerical work of preparing the revised rolls is finished by the first Monday of July, when the rolls are delivered to the board of aldermen and the commissioners no longer have even the custody thereof. Section 907. The tax rolls are completed and delivered to the receiver of taxes on or before the 15th of September, with the proper warrant annexed for the collection of the taxes, which are due and payable on the first Monday of October, with a reward for paying before the 1st of November and a penalty for not paying until after the 1st of December. Sections 914-916.

We have little trouble over the claim of the relator that the assessment upon its shares of stock in national banks is unlawful, because no deduction of debts was allowed. No unequal burden was cast on national banks or their stockholders, nor any unjust discrimination made against them by our tax law, merely because a different system was adopted in taxing their shares of stock, as well as the shares of stock in state banks, from that applied to other personal property. Congress has expressly committed to the Legislature of each state the power of directing and determining the manner and place of taxing all the shares of national banking associations, subject only to the two restrictions named in the section quoted from the federal act. The rule of valuation prescribed by the state statute is to add the amount of capital stock, surplus, and undivided profits together, and divide the result by the number of shares outstanding. These data are furnished by the officers of the bank, and the application of the rule thereto necessarily leads to the exact value of each share. The assessment, although based on this valuation, is not made, as in other cases, in accordance with the proportion which such valuation bears to the amount necessary to be raised by government, but upon the basis of a flat rate of 1 per centum, which, in the case before us, was less than one-half the rate at which other property was taxed. The state is not obliged to apply the same system to the taxation of national banks that it uses in the taxation of other property, provided no injustice, inequality, or unfriendly discrimination is inflicted upon them. We find nothing of this character, either in what was done in the case beforé us or in what might be done in any case under the tax law. The flat rate was more favorable to the relator than the general rate in the city of New York, and, so far as appears, elsewhere in the state, and, while that may not be conclusive, still a different system was open to use by the state, and the system adopted is neither unequal nor unfair, at least as to the national banks. If any bank is located in a tax district where the rate is less than 1 per centum, though we fear there is none so fortunate, its stockholders will be entitled to a reduction to conform thereto, for the tax law expressly provides that "in assessing the shares of stock of banks or banking associations organized under the authority of this state or the United States, the assessment and taxation shall not be at a greater rate than is made or assessed upon other monied capital in the hands of individual citizens of this state." Laws 1896, p. 806, c. 908, § 24, as amended Laws 1901, p. 1350, c. 550. was within the power of the Legislature to weigh advantages and disadvantages, and to substitute a low and flat rate of taxation, an advantage which other property does not have, in the place of the deduction of debts, an advantage which other owners of personal

It

property enjoy. If, in order to promote convenience and facilitate collection of taxes on property owned largely by nonresidents scattered all over the country, they saw fit to substitute in place of the ordinary rule applicable mainly to residents of the immediate locality, a favorable flat rate with no exemptions for debts, it was in their power to do so, for on the average the new system is more favorable to the owners of bank shares than the general system. When all things are considered, the rate, even without the privilege of deducting debts, is not greater than that applied to other moneyed capital in the hands of individual citizens of the state. The fact that the special system may not be as favorable as the general system in an isolated case does not create a conflict with the federal Constitution or statute, for a general statute is a rule of action, not for a few, but for all the people. The accident that it may bear more heavily upon some persons than upon others, owing to their peculiar situation, does not affect its validity, for that is a feature common to most general statutes. Where there is no intentional discrimination against national banks and no inequality in the effect upon their stockholders generally, the act is valid, and this, we think, is true of those provisions of the tax law under consideration.

The relator, however, contends that the tax in question was imposed without notice or any opportunity to be heard, and that the statute contains no provision for either. If this is true, not only must the tax be set aside, but the statute must be adjudged invalid, for it is a principle of our law that there can be no taxation without notice and a chance to complain on account of alleged error or mistake. The notice need not be personal, as it may be by general statute which is notice to all, but it must afford a reasonable opportunity to make complaint. It must be of such a character that compliance therewith is possible, so that the taxpayer may object or protest, even if he has no just ground for doing either. Stuart v. Palmer, 74 N. Y. 190, 30 Am. Rep. 289; Matter of McPherson, 104 N. Y. 321, 10 N. E. 685, 58 Am. Rep. 502; McLaughlin v. Miller, 124 N. Y. 517, 26 N. E. 1104; Matter of Douglas v. Board of Supervisors Westchester Co., 172 N. Y. 314, 65 N. E. 162; People ex rel. Moller v. O'Donnel, 183 N. Y. 9, 12, 75 N. E. 540. A statute, however, will not be adjudged to violate the Constitution if by any reasonable construction it can be given a meaning in harmony with that instrument. "As every presumption is in favor of the statute, if it is open to two constructions, one of which would obey and the other violate the Constitution, the universal rule of courts is to select the former." People ex rel. Simpson v. Wells, 181 N. Y. 252, 257, 73 N. E. 1025. If the general provisions of the tax law relating to a grievance day apply to the assessment and taxation of bank shares, it is obvious that there is no cause for