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Opinion of the Court.

Utah, but the value of real estate situated outside of the limits of the State.

We will first consider the contention respecting the failure to deduct bona fide debts from the value of the stock of nonresident shareholders. The Supreme Court of Utah, referring to the provisions of the constitution of Utah, noted in the margin, of the statement of facts preceding this opinion, held that as the constitution of the State distinguished between stock and credits and authorized only a deduction of debts from credits, shares of stock were not credits, and both resident and non-resident shareholders were not entitled to deduct bona fide indebtedness from the value of their shares of stock. This construction of the statute is binding on this court. First National Bank of Garnett v. Ayers, 160 U. S. 660, 664; First National Bank of Aberdeen v. Chehalis County, 166 U. S. 440, 444. The claim of the benefit of the provisions of section 5219 of the Revised Statutes of the United States is unavailing, for the reason that there was neither averment nor proof of facts taking the case out of the operation of recent decisions of this court. Those decisions held that the term “moneyed capital,” as employed in section 5219 of the Revised Statutes, forbidding greater taxation of shareholders of national banks than is imposed on other moneyed capital, does not include capital which does not come into competition with the business of national banks, and that it must be satisfactorily made to appear by the proof that the moneyed capital claimed to be given an unjust advantage is of the character just stated. First National Bank of Wel lington v. Chapman, 173 U. S. 205, 219, and cases cited.

There is obviously no merit in the further contention that reversible error was committed because of the refusal to deduct from the value of the shares of stock of the bank the assessed value of real estate owned by the bank, situated in other States than Utah. There was no proof that such a deduction was authorized by the laws of Utah in valuing shares of stock of other than national banking associations. On the contrary, the Supreme Court of Utah, from an examination of the several constitutional and statutory provisions respecting the subject of taxation in Utah, concluded that the only deductions which were

Opinion of the Court.

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authorized in the assessment of the shares of stock of national banks or other corporations organized and doing business in the State, were deductions from the value of the shares of the value of real estate situate in Utah. Manifestly, the purpose was to prevent double taxation by the State, a tax on the real estate as such and a further tax thereon by a tax on the stock to the extent that such real estate entered into the value of the stock. As the national banking law, however, permits the taxation of shares of stock of a national bank in the State where the bank is domiciled, the State of domicil is of course entitled to collect taxes upon the full value of such shares of stock. While real estate of a bank situated outside of the State of domicil is taxed in the State of its situs, yet the value of such real estate necessarily enters into and is considered in estimating the value of the shares of stock, and to deduct the value of the real estate would, to the extent of such deduction, reduce the real value of the shares, without a compensatory equivalent. These views and those expressed by the Supreme Court of Utah accord with the doctrine enunciated in Dwight v. Boston, 12 Allen, 316, 332, and American Coal Co. v. County Commissioners, 59 Maryland, 185, 193. In the latter case the principle was thus expressed (p. 194):

“The true criterion, as fixed by the statute, is the true value of the stock, without reference to the question where, or in what manner or nature of property or security, the capital stock may be invested. Whether that be invested in real estate, or other property beyond the jurisdiction of this State, the latter having control over the shares and their true value, the peculiar nature and value of the investment of the capital stock of the corporation, beyond the limits of the State, can form no proper subject for specific deduction or abatement from the true value of the shares of stock, when presented to be assessed for purposes of taxation. It is exclusively with the shares of stock, and their true value, as representing the entire corporate assets, that the tax commissioner has to deal, and not with the nature and locality of the investment of the capital stock of the corporation, except as to the real estate of the company situate within this State."

VOL. CLXXXII-36

Counsel for Parties.

As the shares of stock were taxed as other similar property in Utah and no discrimination was occasioned, we can perceive no ground for concluding that the refusal to deduct the value of the real estate in question constituted either a violation of section 5219, Revised Statutes, or a denial of the equal protection of the laws.

Judgment affirmed.

FULLER v. UNITED STATES.

ORIGINAL APPLICATION FOR MANDAMUS.

No. 7. Argued and submitted April 15, 1901.-Decided May 27, 1901.

The court below, of original jurisdiction in this case, had authority, upon

newly discovered evidence, to grant to the railway company a new trial,

after the final decision of this case at law in that court. It was competent for Congress to confer upon such court, established under

the au chority of the United States, the power to grant a new trial in an action at law upon grounds discovered after the expiration of the term at

which the verdict or decision was rendered. The statute does not declare that the right to apply for a new trial upon

newly discovered evidence after the term shall be any the less when the original term is superseded; nor that a 'new trial of an action at law shall not be applied for or granted, while the case is pending in the appellate

court. The statute of Arkansas in question is applicable only to actions and pro

ceedings at law in the courts of that Territory, as distinguished from suits or proceedings in equity; and as application under that statute, within the time prescribed, for a new trial in an action at law, upon grounds discovered after the term at which the verdict or decision was rendered, was a matter of right, which did not require leave of any court.

This was a motion for leave to file a petition of mandamus, and a petition therefor.

Mr. Richard B. Shepard, Mr. Harrison 0. Shepard and Mr. William T. Hutchings, for petitioner, submitted on their brief.

Opinion of the Court.

Mr. James Hagerman for respondent. Mr. Clifford L. Jackson and Mr. Joseph M. Bryson were on his brief.

MR JUSTICE HARLAN delivered the opinion of the court.

Orange Fuller, assignee of Butler Brothers, brought an action on the 23d day of January, 1892, in the United States Court in the Indian Territory against the Missouri, Kansas and Texas Railway Company to recover the damages alleged to have been sustained in consequence of the negligence of the defendant resulting in the destruction of certain property of Butler Brothers

by fire.

On the 1st day of May, 1894, the venue of the case. was changed to the second judicial division of the Territory, now the Central District, and the result of a trial before the court and a jury was a verdict and judgment in favor of the plaintiff for $8500.

The judgment was superseded, and the cause was taken to the United States Circuit Court of Appeals for the Eighth Circụit, where the record was filed April 3, 1895. In that court the judgment was affirmed on the 30th day of December, 1895. 72 Fed. Rep. 467.

The judgment of affirmance was superseded, and the case was brought to this court upon writ of error sued out by the railway company, the transcript of record being filed here on March 10, 1896. In this court the judgment of the Circuit Court of Appeals was affirmed January 3, 1898. 168 U. S. 707. Our mandate was issued March 3, 1898, and filed in the United States Court in the Indian Territory on July 22, 1898.

On the 20th day of April, 1896, while the case was pending in this court, the railway company filed in the United States Court in the Indian Territory a petition for rehearing upon the ground of newly.discovered evidence. Subsequently, at different dates, amended petitions were filed by the company for a new trial. To those amended petitions answers were made, and it was objected that the court was without jurisdiction or authority to grant a new trial, and that it could not consider the alleged newly-discovered evidence.

Opinion of the Court.

On the 15th of January, 1900, after the filing in the court of original jurisdiction of the mandate of this court, Judge Clayton of that court granted the application of the railway company and made an order for a new trial.

It should be here stated that in that court there were other cases of a like character with the present case—all growing out of the fire on account of which the present action was brought. One of those cases was Missouri, Kansas & Texas Railway Company v. Wilder. In that case the United States Court of Appeals for the Indian Territory adjudged that the plaintiff was not entitled to recover. 53 S. W. Rep. 490.

In the order granting a new trial in the present case it was stated: “Now at this day comes the above named defendant, and in support of the fourth amended petition for a new trial in this case files certified copy of opinion of the United States Court of Appeals for the Indian Territory, in the case of Missouri, Kansas & Texas Railway Company, Appellant, v. William L. Wilder, Appellee, and the court having fully considered the said amended petition for a new trial in this case, which was heretofore continued by agreement between counsel to this the December, 1899, term of this court, together with the evidence thereon, and the briefs of counsel filed both in support and in opposition to said amended petition for new trial, and the court having been fully advised in the premises finds that the original petition for new trial was filed on the twentieth day of April, 1896, in accordance with section 5155 of Mansfield's Digest of the Statutes of Arkansas, extended over the Indian Territory by act of Congress, May 2, 1890, and that summons was duly issued and served upon the plaintiff as required by said statute, and that the said plaintiff has duly entered his appearance in these proceedings, and filed answer to the original petition for new trial, as well as to the different amendments thereto, as such amendments have been based upon such additional evidence as the defendant alleges was discovered subse quent to the filing of the original petition for new trial and amended petitions for new trial respectively, and the court further finds that the evidence fully sustains the said petition for new trial and that under the statute hereinbefore referred to,

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