Opinion of the Court.

does not come into competition with the business of national banks, and is not therefore within the meaning of the act of Congress; that such stocks as those in insurance companies may be legitimately taxed on income instead of on value, because such companies are not competitors for business with national banks; and that exemptions, however large, of deposits in savings banks, or of moneys belonging to charitable institutions, if exempted for reasons of public policy and not as an unfriendly discrimination against investments in national bank shares, should not be regarded as forbidden by section 5219 of the Revised Statutes of the United States.

We shall now, in the light of the previous decisions, advert to the allegations contained in the bill of complaint.

The substance of those allegations is: First, that there was taxable moneyed capital in Chehalis County, which escaped taxation, amounting to $237,400; second, that there was also unassessed moneyed capital in other portions of the State exceeding $14,000,000; third, that the moneyed capital invested in banks, national and state, was $11,000,000; fourth, that there was invested in the stocks and bonds of insurance, wharf and gas companies and other moneyed institutions, moneyed capital amounting to at least $26,000,000.

Even if it be conceded that the stocks and bonds of insurance, wharf and gas companies were, in point of fact, exempted from taxation, such companies are not, as we have seen, competitors for business with the national banks, and, therefore, might be legally exempted. As to the sum of $237,400, alleged to be invested by individual citizens of Chehalis County in loans and securities to them payable and owing by other citizens of that county, we are not informed by the bill of the nature of such loans and securities, and, as against the pleader, we may well assume that they belong to a class of investments which does not compete with the business of national banks. The same is true of the sum of $14,000,000 alleged to be invested in loans and securities by citizens of the State of Washington and to them payable and owing by other citizens of said State. It is, indeed, alleged in the bill that these investments were "taxable capital," but that is an averment in the nature of a

Dissent.

legal conclusion. If those loans and securities had been identified in the bill, or their character described, the court might have reached a different conclusion as to their taxable character.

But

There is an allegation in the bill that the omission by the taxing officers of these classes of capital from assessment and taxation was in pursuance of an opinion rendered by the attorney general of the State of Washington; and it is alleged that the said attorney general was required by the laws of the State to render opinions upon request of the assessors. the bill does not set forth that opinion, or the reasons upon which the attorney general proceeded. The Supreme Court of the State of Washington, adverting to this allegation of the bill, suggests that it is probable that the opinion referred to was one dated February 5, 1891, addressed to the state auditor, and in which the attorney general advised that accounts, promissory notes and mortgages were to be exempted, in order, perhaps, to avoid double taxation. And the Supreme Court well observes that if the action of the assessors was based upon this decision of the law officer of the State, and went no further, the allegations of the bill would certainly turn out to be unsupported. 6 Washington, 64.

We agree with the Supreme Court of Washington in thinking that the allegations of this complaint nowhere show that any moneyed capital of the character defined by the Federal Supreme Court was omitted or intended to be omitted by the assessors; or if the intention of the complaint be to cover any such existing cases, the allegations are so general and indefinite that they cannot be made the basis of action.

The judgment of the Supreme Court of Washington is

Affirmed.

MR. JUSTICE HARLAN, MR. JUSTICE BROWN and MR. JUSTICE WHITE are of opinion that the bill makes a prima facie case of illegal discrimination against capital invested in national bank stock, and, therefore, that the demurrer should have been overruled.

Opinion of the Court.

BANK OF COMMERCE v. SEATTLE.

SEATTLE BANK v. SEATTLE.

PUGET SOUND BANK v. SEATTLE.

WASHINGTON BANK v. KING COUNTY.

ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.

Nos. 223, 224, 225, 226. Argned March 23, 1897.- Decided April 12, 1837.

Bank of Aberdeen v. Chehalis County, 166 U. S. 440, affirmed, followed and applied to the several facts in these respective cases.

THE case is stated in the opinion.

Mr. Harold Preston for plaintiffs in error. Mr. Eugene M. Carr and Mr. James B. Howe were with him on the briefs.

Mr. Andrew F. Burleigh for defendants in error in No. 226. Mr. James A. Haight and Mr. Samuel Piles were on his briefs.

Mr. John K. Brown for defendants in error in Nos. 223, 224 and 225. Mr. John B. Allen and Mr. F. B. Tipton were on his briefs.

MR. JUSTICE SHIRAS delivered the opinion of the court.

The bills of complaint in these cases are substantially of the same legal import, so far as any Federal question is concerned, with that considered in the case of The First National Bank of Aberdeen v. The County of Chehalis, ante, 440, in which the opinion of this court has just been delivered.

The only difference that we notice is that, in connection with the allegation that there existed large amounts of taxable moneyed capital owned by resident citizens and invested in interest-bearing loans and securities, there is made the ad

Syllabus.

ditional allegation that all of said other moneyed capital referred to was all the moneyed capital in the city owned by resident individual citizens and invested in interest-bearing loans, discounts and securities, except that invested in incorporated banks located in the city.

case.

It is not perceived that this additional allegation calls for any different conclusion than the one reached in the previous We are still uninformed whether the moneyed capital left unassessed was, as to any material portion thereof, moneyed capital coming into competition with that of national banks. The averment that the moneyed capital exempted was "taxable" does not enable us to say that it therefore consisted of investments within the meaning of the term "moneyed capital" as used in the act of Congress.

The judgment of the Supreme Court of Washington is, in each case,

Affirmed.

MR. JUSTICE HARLAN, MR. JUSTICE BROWN and MR. JUSTICE WHITE dissent for the reason stated in their memorandum of dissent in No. 38, ante, 440, 462.

AMERICAN PUBLISHING COMPANY v. FISHER.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH.

No. 242. Argued March 29, 1897. - Decided April 12, 1897.

The statute of the Territory of Utah (Compiled Laws of 1888, § 3371, as amended in 1892) providing that in all civil cases a verdict may be rendered on the concurrence therein of nine or more members of the jury," if not invalid under the Seventh Amendment to the Constitution, is so as violating the provision in the act of September 9, 1850, c. 51, admitting Utah as a Territory, that "the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah, so far as the same or any provisions thereof may be applicable," and the act of April 7, 1874, c. 80, "concerning the practice in territorial courts, and appeals therefrom," which provided that no party

Statement of the Case.

"shall be deprived of the right of trial by jury in cases cognizable at common law."

Litigants in common law actions in the courts of that Territory, while it remained a Territory, had a right to trial by jury, which involved unanimity in the verdict, and this right could not be taken away by territorial legislation.

The power of a State to change the rule in respect of unanimity of juries is not before the court in this case.

ON April 29, 1891, plaintiffs in error commenced an action in the District Court of Salt Lake County, Territory of Utah, to recover of defendants the sum of $20,844.75 on a contract for furnishing labels, cards, etc. After answer the case came on for trial before a jury on December 10, 1892, and resulted in a verdict in favor of the defendants, signed by nine jurors, the others not concurring. Judgment was rendered upon this verdict, which was sustained by the Supreme Court of the Territory. 10 Utah, 147.

This action of the trial and Supreme Courts in sustaining a verdict returned by only nine of the jurors was under the authority of an act of the legislature of Utah, approved March 10, 1892 (Laws Utah, 1892, page 46), which provides as follows:

"SEC. 1. That section 3371 of the Compiled Laws of 1888, of Utah, is hereby amended so as to read as follows:

"SEC. 3371. In all civil cases a verdict may be rendered on the concurrence therein of nine or more members of the jury.” The bill of exceptions contains this recital in respect to an instruction and the verdict:

"The court further charges you that the concurrence of nine or more members of the jury is essential to your verdict, and that all who agree to it should sign it.

"(To which last charge the plaintiff duly excepted.) "The jury having retired and deliberated, returned a written verdict into court on the 12th day of December, 1892, finding the issues for the defendant,' signed by nine (9) of its members -the others refusing to concur therein. Which verdict the court then and there received and caused to be entered upon the record.

"To which action of the court the plaintiff excepted."

VOL. CLXVI-30