Newman v. Wait

The opinion of the court was delivered by Peck, J. It appears that on the trial before the jury, under the general issue not guilty, the defendant objected that he being cashier of a national bank, was not amenable to the statute law of the state creating the -duty and imposing the penalty in question. To determine whether the county court erred in law in not recognizing this as a defence, it is proper in the first place to see whether the question of the validity of the statute as against the defendant, was involved in the issue then on trial. This depends on the state of the pleadings. The declaration which is referred to, among other things, sets forth that the defendant, at the time in question, was cashier of the First National Bank of Brattleboro, organized under the act of Congress, &c., located and doing business at Brattleboro. It also alleges the passing of the act of November 9, 1865, by the legislature of Vermont, and recites the sections of the statute creating the duty, the breach of which is complained of, upon all cashiers of national banks and cashiers of all other banks in this state, and imposing a forfeiture of five hundred dollars to the town in reference to which any such cashier shall neglect or refuse to perform that duty. The plea is not guilty. The issue was as to the truth of the declaration, notas to its sufficiency in law. If the plaintiff proved the declaration, he was entitled to a verdict, in the absence of proof of facts on the part of the defendant to obviate it. The statute being recited in the declaration, and the defendant being alleged to be a cashier of a national bank, the validity of the statute was not put in issue by the plea. If the defendant wished to raise the question as to the validity of the statute as applicable to a cashier of a national bank, he should have done it by demurrer to the declaration, or by motion in arrest of judgment after verdict, for insufficiency of the declaration. He had no right to require the court, on the trial before the jury, to entertain and decide a question outside [695] the issue he had tendered ; and it was not error in the county court to refuse to do it. This court in hearing cases on exceptions, sits as a court of error, to revise such questions only as were properly presented and involved in the decision of the county court; not such questions as might have been presented by different pleadings. The declaration having alleged that the defendant was cashier of a national bank organized and doing business under the laws of Congress, and having recited the statute of this state prescribing his duty, and imposing the penalty for the breach of it, and the defendant having gone to trial on the general issue, and not having moved in arrest of judgment in the county court, the question of the sufficiency of the declaration, and consequently the question of the validity of the statute of the state as against the defendant, is not before us. The evidence offered by the defendant and rejected by the county court, was inadmissible. The fact that the bank kept such list of stockholders as required by the laws of Congress, and that the listers, on application to the bank, might have transcribed therefrom such stock as they deemed taxable, and that in the month of April in the years in question, they did so, and that the same was duly taxed, cannot be accepted as a legal substitute for the duty, imposed on the defendant by the statute, of transmitting the list of stock or shareholders to the town clerk, “ together with the amount of money actually paid in on each share on the first day of April in each year,” “ on or before the fifteenth day of April in each year.” Affording the listers of a town the means of acquiring by their own labor and efforts, on application to the bank, the information which the statute requires the defendant to transmit to the town clerk, is not a compliance with the statute, even if they availed themselves of such means as offered to be shown. If it is a compliance as to the town of Brattleboro, it must be so as. to every other town in the state, however remote from the bank. Such a construction as the defendant’s claim implies, would render it necessary for the listers of each town in the state to apply to, and examine the books or lists in, each national bank in the state, to ascertain whether any share or stockholders were taxable in their town. Nor can this evidence be admissible [696] in mitigation of damages. If the defendant is liable at all, he is liable for the amount of the penalty imposed by the statute. The fact that the action is given only to a town in reference to which the defendant shall have been guilty of the neglect or refusal to perform the duty imposed, does not make the penalty divisible, or apportionable according to the amount of damage sustained by the particular town that may bring the suit. Whether the damage sustained by the particular town in any case, is more or less than the prescribed penalty, tho recovery can be neither more nor less than the penalty named in the statute. Such is the rule in reference to penal statutes, even where the right of action is in terms given only to the party aggrieved. In this court it is insisted on the part of the defence, that if the defendant had performed the duty required of him by our state statute, it would have been no aid to taxation ; because, it is claimed, our statute of 1865 above referred to, providing for' the taxation of shares or stock in national banks, did not conform to the act of Congress relating to the taxation of shares in national banks. Whether it would be competent for the defendant to interpose such objection if it were well founded in fact, it is not material to decide, as the act of 1865 aforesaid, provides that the stock and shares of all such banking associations shall be set in the list and taxed in the same manner that the stock in the several banks in this state which are chartered under the authority of this state, are liable to be taxed by the existing laws thereof. It is clear that this provision, taken in connection with the state law existing at the time in question, in reference to taxing bank stock or shares owned by individuals residing in this state, does not conflict with the act of Congress so far as relates to national bank shares owned by residents of this state. Whether there wasany provision in the then existing state law, relating to taxing bank stock or shares owned by persons not residing in this state, or by the bank itself, which was invalid, is not material to the question involved in this case ; for even if so, it would not affect the validity of the provision for taxing shares or stock owned by individuals resident in the state. The state therefore had a beneficial purpose of promoting legal taxation, to be served by the performance of [697] the° duty required of the defendant. There was no conflict between the state law and the act of Congress, in relation to the place of taxing such bank shares or stock. None of the objections urged by defendant’s counsel, show any error in the rulings of the county court, and the judgment of that court is affirmed.