Michigan National Bank v. Michigan/Dissent Whittaker

Mr. Justice WHITTAKER, with whom Mr. Justice DOUGLAS joins, dissenting.

I respectfully but resolutely dissent. Exposition of my reasons will require a rather full and careful statement of the facts and the applicable law.

A State is without power to tax national bank shares except as Congress consents and then only in conformity with the conditions of such consent. See, e.g., First National Bank of Guthrie Center v. Anderson, 269 U.S. 341, 347, 46 S.Ct. 135, 136, 70 L.Ed. 295, and Des Moines National Bank v. Fairweather, 263 U.S. 103, 106, 44 S.Ct. 23, 24, 68 L.Ed. 191. By § 5219 of the Revised Statutes of the United States (Act of June 3, 1864, c. 106, 13 Stat. 111, as amended by the Act of February 10, 1868, 15 Stat. 34, the Act of March 4, 1923, 42 Stat. 1499, and the Act of March 25, 1926, 44 Stat. 223), Congress has consented that:

'The legislature of each State may determine and direct,     subject to the provisions of this section, the manner and      place of taxing all the shares of national banking      associations located within its limits. The several States     may (1) tax said shares, or (2) include dividends derived      therefrom in the taxable income of an owner or holder      thereof, or (3) tax such associations on their net income, or      (4) according to or measured by their net income, provided      the following conditions are complied with:

'1. (a) The imposition by any State of any one of the above     four forms of taxation shall be in lieu of the others *  *  * .'

'(b) In the case of a tax on said shares the tax imposed     shall not be at a greater rate than is assessed upon other      moneyed capital in the hands of individual citizens of such      State coming into competition with the business of national      banks *  *  * .'

Prusuant to that consent, Michigan passed its Intangibles Tax Act (Act 301, Public Acts of 1939; Mich.Comp.Laws, 1948, § 205.132; Mich.Stat.Ann., 1950, § 7.556(2)) imposing, upon the owners an annual tax (1) of 3% of the income from, but not less than 1/10 of 1% of the face or par value of, national bank shares, and (2) of 4 cents per $100 of the 'paid-in value' of savings and loan association shares. By another statute, Michigan imposed, in addition, a privilege tax of 2 1/2 cents per $100 on the value of the capital and legal reserves of state (but not federal) savings and loan associations (Mich.Comp.Laws, 1948, § 450.304a; Mich.Stat.Ann. § 21.206)-thus making a total tax of 6 1/2 cents per $100 of the value of state, and 4 cents per $100 of the value of federal, savings and loan shares.

In obedience to that Intangibles Tax Act, appellant, Michigan National Bank, having offices and doing business in seven cities in Michigan, paid to the State, on behalf of its shareholders, the taxes thereby imposed on its shares for the year 1952. Thereafter, by Act No. 9 of the Public Acts of Michigan for 1953 (§ 205.132a, Mich.Comp.Laws, 1948, 1956 Supp.; Mich.Stat.Ann., 1959 Cum.Supp., § 7.556(2a)), the State amended its Intangibles Tax Act as respects bank shares, but without touching the provisions respecting savings and loan association shares, to provide, in pertinent part, as follows: Acting under the provisions of the amended statute ('Act 9'), the State imposed an additional tax upon the owners of appellant's 'shares' for the year 1952 of $49,929.27. After paying that additional tax under protest, appellant brought this action in the Michigan Court of Claims for its recovery. The ground of its suit was that the State's action in taxing the 'shares' of national banks at a rate of 55 cents per $100 of their value, while taxing the 'shares' of savings and loan associations at a rate of 6 1/2 cents per $100 of their value, taxed the former 'at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks,' and therefore violated § 5219. After trial, the Michigan Court of Claims held that the assessment and collection of the additional tax did not violate § 5219 and entered judgment for the State.

On appeal, the Michigan Supreme Court, (358 Mich. 611, 101 N.W.2d 246), though conceding that Act 9 placed the shares of 'both State and national banks in a special and more heavily taxed category' than the shares of savings and loan associations, held, inter alia, (1) that because savings and loan associations are 'different in character, purpose and organization from national banks,' operate 'in a narrow, restricted field,' and are not permitted to receive deposits, they could not, as a matter of law, come 'into competition with the business of national banks' within the meaning of § 5219, (2) that inasmuch as Michigan lawfully might entirely exempt some entities or activities from taxation without offending § 5219, it may prefer the shares of savings and loan associations, by granting their owners a lower tax rate than it grants to the owners of shares of national banks, without thereby violating § 5219, and (3) that when the value of the total assets, rather than the value of the shares, of the two types of financial institutions is considered (thus putting out of consideration the liability of the banks to repay their deposits and other debts), the ratio of the total dollar tax burden to total assets is approximately the same in Michigan-.091 for banks and .089 for savings and loan associations-and this, it said, 'establishes that there was practical equality of the total tax imposed upon building and loan associations and upon national banks.' It therefore affirmed the judgment, 358 Mich. 611, 101 N.W.2d 245, and we noted probable jurisdiction of the bank's appeal. 364 U.S. 810, 81 S.Ct. 51, 5 L.Ed.2d 40.

This Court today substantially adopts the latter conclusion, and on that basis affirms the judgment. In doing so, I must say, with respect, that the Court ignores both the provisions of § 5219 and Michigan's mode, plainly expressed in its Act 9, of valuing national bank shares and the shares of savings and loan associations for the purposes of its tax upon them, and effectively defaces and departs from a long line of this Court's decisions, hammered out, case by case, over the course of nearly a century, that are squarely in point and specifically decisive of every question in the case.

The admitted difference in the rates of tax-55 cents per $100 of the value of national bank shares as opposed to 6 1/2 cents per $100 of the value of savings and loan shares-leaves, of course, no doubt that the former are taxed 'at a greater rate than' the latter-more than eight times greater. Therefore, the only questions that can possibly be open here under § 5219 are (1) whether savings and loan shares are 'other moneyed capital in the hands of individual citizens,' (2) whether that moneyed capital is 'coming into competition with (some substantial phase of) the business of national banks,' and (3) whether it is 'substantial in amount when compared with the capitalization of national banks.' The latter being an element that this Court has held to be implicit in the statute. First National Bank of Hartford, Wis. v. City of Hartford, 273 U.S. 548, 558, 47 S.Ct. 462, 465, 71 L.Ed. 767.

Surely it cannot now be doubted that shares owned by individual citizens in a savings and loan association, which engages in the business of making residential mortgage loans for profit, are 'other moneyed capital in the hands of individual citizens,' within the meaning of § 5219. This Court has long since settled the question. The term 'include(s) shares of stock or other interests owned by individuals in all enterprises in which the capital employed in carrying on its business is money, where the object of the business is the making of profit by its use as money.' Mercantile Nat. Bank of City of New York v. Mayor etc. of City of New York, 121 U.S. 138, 157, 7 S.Ct. 826, 836, 30 L.Ed. 895. 'By its terms the (statute) excludes from moneyed capital only those personal investments which are not in competition with the business of national banks.' First National Bank of Hartford, Wis. v. City of Hartford, supra, 273 U.S. at page 557, 47 S.Ct. at page 465. See also State of Minnesota v. First National Bank of St. Paul, 273 U.S. 561, 564, 47 S.Ct. 468, 469, 71 L.Ed. 774; First National Bank of Guthrie Center v. Anderson, supra, 269 U.S. at page 348, 46 S.Ct. at page 138 and cases cited.

Whether such moneyed capital is being used in 'competition with (some substantial phase of) the business of national banks' and is 'substantial in amount when compared with the capitalization of national banks' are mixed questions of law and fact, 'and in dealing with (them) we may review the facts in order correctly to apply the law.' First National Bank of Hartford, Wis. v. City of Hartford, supra, 273 U.S. at page 552, 47 S.Ct. at page 463.

Here the relevant facts are not in dispute. The uncontroverted evidence shows that, as a part or phase of its general banking business conducted in seven cities in Michigan, appellant is extensively engaged in the business of making residential mortgage loans. In those cities, there are 16 savings and loan associations which are also extensively engaged in that business. Competition between them and appellant for such loans is keen and continuous. Both appellant and those loan associations extensively advertise for and solicit such loans from all classes and in every economic strata of the people in those communities. They make these loans on the same kinds of residential properties and in the same areas-one type of institution often refinancing and retiring a loan of the other. The rates, terms and conditions of the loans, being competitive, are substantially the same, and in many cases-particularly in the cases of F.H.A. and V.A. loans-they are of precisely the same terms and on exactly the same forms-forms prepared and furnished by the Federal Government.

Directed specifically to the question whether moneyed capital of savings and loan associations was being used, in significant amounts, in 'competition with (some substantial phase of) the business of national banks' in Michigan, the uncontroverted evidence shows that in the year in question, 1952, the savings and loan associations in Michigan held $433,000,000 of residential mortgage loans, while the national banks in that State held $301,000,000 of such loans-which constituted 30% of their total loans and discounts. In the same year, the 16 savings and loan associations that were most directly competing with appellant made 6,498 residential mortgage loans aggregating about $32,000,000 (of which $6,273,000 were F.H.A. and V.A. and $26,058,000 were conventional loans) which brought their total holdings in such loans to $97,000,000. Whereas, in the same year, appellant made 2,728 residential mortgage loans aggregating about $18,500,000 (of which $10,869,000 were F.H.A., $456,000 were V.A. and $7,245,000 were conventional loans) which brought its total holdings in such loans to $60,000,000. Those loans amounted to 40% of appellant's total loans and discounts, constituted 20% of its assets and yielded 26% of its income.

Upon the question whether the moneyed capital of savings and loan associations that was used in making residential mortgage loans in Michigan was 'substantial in amount when compared with the capitalization of national banks' in that State, the uncontroverted evidence shows that in the year in question the savings and loan associations in Michigan held a total of $433,000,000 of such loans, whereas the total capitalization of all national banks in that State was $166,724,000. And the 16 savings and loan associations that were most directly competing with appellant held, in the same period, $97,000,000 of such loans, whereas appellant's capitalization was $13,038,000.

Certainly these undisputed facts establish that 'moneyed capital' of savings and loan associations was being used in very significant 'competition with (a substantial phase of) the business of national banks' in Michigan, and that such competition was 'substantial in amount when compared with the capitalization of national banks' in that State.

It thus seems altogether clear to me that these uncontroverted facts establish every essential element of appellant's case. It cannot be denied that the plain words of § 5219 prohibit the States from taxing the shares of national banks 'at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with (some substantial phase of) the business of national banks.' Yet, here Michigan taxed national bank shares at a rate of 55 cents per $100 of value, but it taxed savings and loan shares at a rate of only 6 1/2 cents per $100 of value. Did it not plainly thus tax national bank shares 'at a greater rate' than it taxed savings and loan shares? Certainly the latter were 'other moneyed capital in the hands of individual citizens of such State.' See, e.g., Mercantile Bank of City of New York v. Mayor, etc. of City of New York, supra, 121 U.S. at page 157, 7 S.Ct. at page 836; First National Bank of Hartford, Wis. v. City of Hartford, supra, 273 U.S. at page 557, 47 S.Ct. at page 465. Does not the uncontroverted evidence, which we have summarized in some detail, show that such 'other moneyed capital' was used in Michigan in very significant 'competition with (a substantial phase of) the business of national banks' and that such competition was 'substantial in amount when compared with the capitalization of national banks' in Michigan? Do not these facts establish every element of appellant's case? Respondents do not, nor does the Court, point to any essential element that is missing. Why, then, is appellant not entitled to recover?

The only reasons advanced by respondents are those it successfully urged upon the Michigan Supreme Court. Every one of those contentions is opposed to the plain terms of § 5219 on the facts of this record, and also has been specifically decided adversely to respondents, on similar facts, by this Court, as I shall show.

First. Respondents argue that, because they may not receive 'deposits,' create 'checkbook money' or engage in 'banking,' but must operate 'in a narrow, restricted field,' savings and loan associations are so 'different in character, purpose and organization from national banks' that-regardless of the actual facts shown in this record-they cannot, as a matter of law, come 'into competition with the business of national banks' within the meaning of § 5219.

This argument, upon analysis, comes down to the contention that the restriction of § 5219 was directed only against discrimination in favor of state banks. For they, so the argument runs, are the only state-created institutions that lawfully may engage in 'banking business' similarly to national banks and hence, respondents conclude, only the moneyed capital of state banks can constitute 'other moneyed capital * *  * coming into competition with the business of national banks,' within the meaning of § 5219.

A similar question arose in First National Bank of Guthrie Center v. Anderson, 269 U.S. 341, 46 S.Ct. 135, 138. There '(t)he defendants took the position (in the state court) that the congressional restriction (of § 5219) was directed only against discrimination in favor of state banking associations.' This Court said the contention was ' * *  * untenable by reason of settled rulings to the contrary *  *  * .' Id., 269 U.S. at page 349, 46 S.Ct. at page 139. After summarizing its earlier cases, the Court declared that '(t)he purpose of the restriction is to render it impossible for any State, in taxing the shares, to create and foster an unequal and unfriendly competition with national banks, by favoring shareholders in state banks or individuals interested in private banking or engaged in operations and investments normally common to the business of banking. Mercantile National Bank of City of New York v. Mayor, etc. of City of New York, 121 U.S. 138, 155, 7 S.Ct. 826, 30 L.Ed. 895; Des Moines National Bank v. Fairweather, supra, (263 U.S. 103), 116, 44 S.Ct. 23.' 269 U.S. at pages 347-348, 46 S.Ct. at page 138. (Emphasis added.) And it held that 'Moneyed capital is brought into such competition (not only) where it is invested in shares of state banks or in private banking * *  * (but) also where it is employed, substantially as in the loan and investment features of banking, in making investments, by way of loan, discount or otherwise, in notes, bonds or other securities with a view to sale or repayment and reinvestment. Mercantile National Bank v. New York, surpa, (121 U.S.) 155, 157, (7 S.Ct. 826); Palmer v. McMahon, 133 U.S. 660, 667-668, 10 S.Ct. 324, 33 L.Ed. 772; Talbot (Talbott) v. Board of Com'rs Silver Bow County, 139 U.S. 438, 447, 11 S.Ct. 594, 35 L.Ed. 210.' 269 U.S. at page 348, 46 S.Ct. at page 138. (Emphasis added.)

Respondents' contention that 'other moneyed capital' does not come into competition with the business of national banks unless it is employed in a business substantially identical with all phases of the business carried on by national banks was squarely met and rejected by this Court, in words about as plain as it is possible to conceive, in First National Bank of Hartford, Wis. v. City of Hartford, supra. There, the Wisconsin Supreme Court 'apparently construed the decisions of this Court as requiring equality in taxation only of moneyed capital invested in businesses substantially identical with the business carried on by national banks. Consequently, since that class of business must under the Wisconsin statutes be carried on in corporate form and capital invested in it is taxed at the same rate as national bank shares, other moneyed capital, as defined in § 5219, within the state, it thought, was not favored.' 273 U.S. at pages 555-556, 47 S.Ct. at pages 464-465. That view, if logically pursued, would mean that 'other moneyed capital' invested in businesses engaged in some but not all of the activities of national banks could not be considered in determining the question of competition. In rejecting that contention, this Court said:

'But this Court has recently had occasion, in reviewing the     earlier decisions dealing with this subject, to point out      that the requirement of approximate equality in taxation is      not limited to investment of moneyed capital in shares of      state banks or to competing capital employed in private      banking. The restriction applies as well where the     competition exists only with respect to particular features      of the business of national banks or where moneyed capital      'is employed, substantially as in the loan and investment      features of banking, in making investments by way of loan,      discount or otherwise, in notes, bonds or other securities,      with a view to sale or repayment and reinvestment.' First      National Bank v. Anderson, supra, 348 (46 S.Ct. 138). In so     doing, it followed the holding in Mercantile Bank v. New York, 121 U.S. 138, 157, 7      S.Ct. 826, 836 (30 L.Ed. 895), * *  * .' 273 U.S. at page 556,      47 S.Ct. at page 465. (Emphasis added.)

The Court then proceeded to declare the law in such clear and ringing terms as have settled the question for the intervening 34 years-from 1927 until today. It said:

'Competition may exist between other moneyed capital and     capital invested in national banks, serious in character and      therefore well within the purpose of § 5219, even though the      competition be with some but not all phases of the business      of national banks. Section 5219 is not directed merely at     discriminatory taxation which favors a competing banking      business. Competition in the sense intended arises not from     the character of the business of those who compete but from      the manner of the employment of the capital at their command. No decision of this Court appears to have so qualified § 5219     as to permit discrimination in taxation in favor of moneyed      capital such as is here contended for. To so restrict the     meaning and application of § 5219 would defeat its purpose. It was intended to prevent the fostering of unequal     competition with the business of national banks by the aid of      discriminatory taxation in favor of capital invested by      institutions or individuals engaged either in similar      businesses or in particular operations or investments like      those of national banks. * *  * Our conclusion is that § 5219      is violated wherever capital, substantial in amount when      compared with the capitalization of national banks, is      employed either in a business or by private investors in the      same sort of transactions as those in which national banks      engage and in the same locality in which they do business.'      273 U.S. at pages 557-558, 47 S.Ct. at page 465. (Emphasis     added.) Identical conclusions were again announced by the Court on the same day in State of Minnesota v. First National Bank of St. Paul, 273 U.S. 561, 47 S.Ct. 468.

Here, there is no question about the fact that the making of residential mortgage loans was a substantial phase of the business of national banks in Michigan. Such loans amounted to $301,000,000 and constituted 30% of their total loans and discounts. Nor can there by any question about the fact that moneyed capital of savings and loan associations was being used in significant competition with the residential mortgage loan phase of the business of national banks in Michigan. Those loan associations held $433,000,000 of such loans. That amount was certainly substantial 'when compared with the capitalization of national banks' in Michigan of $166,724,000. These facts, under the rule of the Hartford and Minnesota cases, would seem to leave no doubt that appellant's shares were discriminatorily taxed in violation of § 5219.

Second. Respondents argue that savings and loan associations are similar in character and purpose to the, now largely historical, small mutual savings banks that were common in the last century. On that assumption, they argue that inasmuch as this Court has held that taxation of national bank shares at a greater rate than was assessed against such mutual savings banks did not offend § 5219 (see, e.g., Mercantile Bank of City of New York v. Mayor, etc., of City of New York, 1887, 121 U.S. 138, 7 S.Ct. 826, 30 L.Ed. 895; Davenport Nat. Bank v. Davenprot Board of Equalization, 1887, 123 U.S. 83, 8 S.Ct. 73, 31 L.Ed. 94; Bank of Redemption v. City of Boston, 1888, 125 U.S. 60, 8 S.Ct. 772, 31 L.Ed. 689; Aberdeen Bank v. Chehalis County, 1897, 166 U.S. 440, 17 S.Ct. 629, 41 L.Ed. 1069), it should follow that the taxation of national bank shares at a greater rate than savings and loan shares does not offend the statute.

That argument, too, was specifically answered by the Hartford case. With unmistakable reference to those cases, the Court said: 'Some of the cases dealing with the technical significance of the term competition in this field were decided before national banks were permitted to invest in mortgages as they are now. Act of December 23, 1913, c. 6, § 24, 38 Stat. 251, 273; Act of September 7, 1916, c. 461, 39 Stat. 752, 754; Act of February 25, 1927, § 24. And others go no further than to hold that in the absence of allegation and proof of competition with national banking capital, it cannot be said that an offending discrimination exists.' 273 U.S. at page 558, 47 S.Ct. at page 465. Then, squarely rejecting the theory of respondents' argument, the Court said:

'With the great increase in investments by individuals and     the growth of concerns engaged in particular phases of      banking shown by the evidence in this case and in State of      Minnesota v. First National Bank of St. Paul, 273 U.S. 561,      47 S.Ct. 468, 71 L.Ed. (774), today decided, discrimination     with respect to capital thus used could readily be carried to      a point where the business of national banks would be      seriously curtailed. Our conclusion is that § 5219 is     violated wherever capital, substantial in amount when      compared with the capitalization of national banks, is      employed either in a business or by private investors in the      same sort of transactions as those in which national banks      engage and in the same locality in which they do business.'      273 U.S. at page 558, 47 S.Ct. at page 465.

Surely nothing more need be said.

Third. Respondents argue that inasmuch as this Court has held that a State may entirely exempt some entities or activities from taxation-i.e., churches, charities, small mutual savings banks, municipal bonds, and the like-without offending § 5219 (see, e.g., Hepburn v. School Directors, 23 Wall. 480, 23 L.Ed. 112; Adams v. Nashville, 95 U.S. 19, 24 l.Ed. 369; Mercantile Nat. Bank of City of New York v. Mayor, etc., of City of New York, surpa; Davenport Nat. Bank v. Davenport Board of Equalization, supra; Bank of Redemption v. City of Boston, supra; Aberdeen Bank v. Chehalis County, supra), it follows that a State may prefer the shares of savings and loan associations, by granting their owners a lower tax rate than it grants to the owners of shares of national banks-even though the former are used in significant competition with a substantial phase of the business of the latter without thereby violating § 5219.

Despite the strongest of implications to the contrary, we have no occasion here to consider whether the State might, under conditions shown by this record, entirely exempt the shares of savings and loan associations from taxation, while taxing the shares of national banks, for it has not done so. The State taxes savings and loan shares, although at only about 1/8 of the rate it levies on national bank shares.

In these circumstances, respondents' argument runs in the very teeth of this Court's holding in the Hartford case that 'Competition in the sense intended (by § 5219) arises not from the character of the business of those who compete but from the manner of the employment of the capital at their command' (273 U.S. at page 557, 47 S.Ct. at page 465), and 'that § 5219 is violated wherever capital, substantial in amount when compared with the capitalization of national banks, is employed either in a business or by private investors in the same sort of transactions as those in which national banks engage and in the same locality in which they do business.' 273 U.S. at page 558, 47 S.Ct. at page 465. A more direct and conclusive answer cannot readily be perceived.

Fourth. Respondents argue, and the Court agrees, that when the value of the total assets, rather than the value of the shares, of the two types of financial institutions is considered, the ratio of the total dollar tax burden to total assets is approximately the same in Michigan-.091 for banks and .089 for savings and loan associations-and therefore national bank shares are not really taxed at a greater rate than savings and loan shares.

This brings us to the heart of our disagreement with the Court. After correctly observing the 'There are other considerations (than rates) to be weighed in determining the actual burden of the tax, one of which is the mode of valuing bank shares-by adopting 'book values' (capital, surplus and undivided profits)-which may be more or less favorable than the method adopted in valuing other kinds of personal property,' Amoskeag Savings Bank of Manchester, N.H. v. Purdy, 231 U.S. 373, 392, 34 S.Ct. 114, 122, 58 L.Ed. 274; see also Hepburn v. School Directors, 23 Wall. 480, 484, 24 L.Ed. 369; Tradesmens National Bank v. Oklahoma Tax Comm., 309 U.S. 560, 567, 60 S.Ct. 688, 692, 84 L.Ed. 947, and that it is not the rate alone but the practical effect of the tax that determines whether there is discrimination, the Court says: '(I)t is obvious that the taxable value of the shares in these two types of financial institutions is determined by different methods * *  * .' This conclusion is demonstrably wrong. In plain and simple terms Act 9 provides that the value of bank shares 'shall be determined by dividing such capital account (capital, surplus and undivided profits) by the number of shares of such common stock * *  * .' (see note 2), and the shares of savings and loan associations are valued at the 'paid-in value'. In each case, therefore, corporate liabilities are deducted and the tax is imposed upon the book value of the shares. Hence, it could hardly be plainer 'that the taxable value of the shares in these two types of financial institutions is determined by' exactly the same, not 'different,' methods. One cannot profitably elaborate a truth so simple.

Then, the Court comes to the real basis of its decision. It says '(Michigan's) system looks to the moneyed capital controlled by the shareholder. If it is a share in a bank-either federal or state-the legislature considers the deposits available for investments and fixes a rate commensurate with that increased earning and investment power of the shareholder'; that 'a dollar invested in national bank shares controls many more dollars of moneyed capital, the measuring rod of § 5219. On the other hand, the same dollar invested in a savings and loan share controls no more moneyed capital than its face value. The bank share has the power and control of its proportionate interest in all of the money available to the bank for investment purposes. In the case of Michigan National, this control is more than 21 times greater than the share's proportionate interest in the capital stock, surplus and undivided profits'; that 'Since Michigan National's share owner's investment has the equivalent profit-making power of an amount 21 times greater than itself and the investor in savings and loan share(s) * *  * has no similarly multiplied power, the national bank share would not be 'unfavorably' treated unless it was taxed in excess of 21 times the levy on savings and loan share(s) *  *  *. Here the ratio is only 13.8 to one * *  * .' (Emphasis added.)

I respectfully submit that this is an egregious error. Nothing in the Michigan statute provides or contemplates that the amount of capital 'controlled' by the shares of a national bank, or the amount of the bank's 'deposits,' is a relevant factor in determining the value of bank shares for the purposes of this tax. Nor are 'increased (values) to the shareholder,' by reason of capital 'controlled' by the bank or its 'deposits,' made relevant factors. Quite specifically to the contrary, Act 9 provides that "Capital account' as referred to herein shall be determined by adding the common capital, surplus and undivided profits accounts * *  *, and the dollar amount of the capital account represented by each share of its common stock shall be determined by dividing such capital account by the number of shares of such common stock *  *  * .' How could it more plainly be said that bank shares must be valued, for the purposes of this tax, solely upon their book value without regard to the bank's 'deposits' or to the capital 'controlled by the shareholder'? It is surely clear that the Michigan tax is not imposed upon national banks or upon their assets; instead, it is imposed upon the owners of the bank's shares, measured solely by the value of those shares-'determined by dividing (the) capital account by the number of shares of such common stock.' See note 2.

Respondents' argument, and the Court's decision, put out of consideration the liability of national banks to repay their deposits and other debts, and would impose the tax on their gross assets, in direct opposition to the plain terms of the Michigan statute.

Precisely the same argument was rejected by this Court in State of Minnesota v. First National Bank of St. Paul, supra:

'Petitioner argues that in its actual operation, the tax on     national bank shares is no greater than the tax on credits,      since under the statute individuals are taxed at the rate of      three mills upon the full value of their credits without      deducting their liabilities, whereas in taxing bank shares,      the liabilities of the banks are deducted from their assets      in ascertaining the forty per cent. valuation of their     shares. Therefore, it is urged, if bank shares were taxed at     the same rate without deducting the bank's liabilities in      ascertaining the value of their shares, the amount of the tax      would be approximately the same. This argument ignores the     fact that the tax authorized by § 5219 is against the holders      of the bank shares and is measured by the value of the      shares, and not by the assets of the bank without deduction      of its liabilities, (Des Moines National Bank v. Fairweather,      263 U.S. 103, 44 S.Ct. 23, 68 L.Ed. 191), *  *  * .' 273 U.S. at      page 564, 47 S.Ct. at page 469.

It would indeed be novel, even in the absence of the contrary provisions of Act 9, to add liabilities to assets in determining book value of corporae shares-a simple contradiction in terms. It is likewise idle to observe the obvious fact that savings and loan associations have no 'deposits,' and hence no deposit liabilities to deduct, or to argue that they, in valuing their shares for the purposes of this tax, should be allowed to deduct the amounts paid in by their 'shareholders' for their 'shares,' as the resulting figure would be zero, and the effect would be to tax those shares only in fiction. Nothing in either Act 9 or in § 5219 authorizes such double talk.

Here, Michigan values national bank shares and savings and loan association shares, for the purposes of this tax, by exactly the same method, i.e., the value of the shares. Yet it taxes bank shares at a rate of 55 cents per $100 of their value, while taxing savings and loan shares at 6 1/2 cents per $100 of their value. Does not that conduct violate the provision of § 5219 that national bank shares 'shall not be (taxed) at a greater rate than is assessed upon other moneyed capital * *  * coming into competition with the business of national banks'?

If the Court's argument, that a tax upon the bank's 'deposits' at the rate applied to the shares of savings and loan associations would produce a greater tax than results from application of the higher bank share rate to the value of its shares, has any relevance to any issue in this case, it can only be to demonstrate that including 'deposits' in the valuation of bank shares would be to tax not just the bak's 'shares,' as authorized by § 5219, but both the 'shares' and the 'deposits' of the bank, and not at the lower rate applicable to savings and loan shares but at the eight times higher one applicable to the shares of national banks. Similarly, the Court's argument that appellant, despite this tax discrimination, has phenomenally prospered seems wholly irrelevant, for the criterion of § 5219 is not whether national banks may prosper, despite state tax discrimination, but is rather than their shares 'shall not be (taxed) at a greater rate than is assessed upon other moneyed capital * *  * coming into competition with the business of national banks.' But, if the Court's argument has any relevance, it should be observed that Michigan national banks have not increased assets proportionately to savings and loan associations in that State since the passage of Act 9 in 1953, for the amount of residential mortgage loans then held by such associations in that State of $433,000,000 has now grown to $1,700,000,000.

Finally, respondents argue that Congress, in restricting state taxation of federal savings and loan associations to a rate not 'greater than that imposed by such authorized on other similar local mutual or cooperative thrift and home financing institutions,' 12 U.S.C. § 1464(h), 12 U.S.C.A. § 1464(h), evidenced its understanding and intention that savings and loan shares might be taxed at a lower rate than the shares of national banks, and thus impliedly repealed or modified § 5219 so far as competition with the business of national banks from that source is concerned.

There is no basis for an assumption that Congress, in so restricting state taxation of federal savings and loan associations, intended, so lightly and collaterally, to repeal or modify § 5219 by implication. It is obvious that, by § 1464(h), Congress only restricted state taxation of federal savings and loan associations to a rate not greater than that assessed by the State against similar state associations. Therefore, if, as seems entirely clear from § 5219 and our cases, a State may not tax national bank shares at a greater rate than it taxes state savings and loan association shares, when the latter are used in significant competition with a substantial phase of the former's business, it accordingly may not tax national bank shares at a greater rate than it taxes the shares of federal savings and loan associations which are similarly competing with a substantial phase of the business of national banks. For it may not, in such circumstances, lawfully prefer either over national bank shares with which they so compete. In other words, by § 1464(h), Congress restricted the States from taxing federal savings and loan associations at a greater rate than state savings and loan associations, and by § 5219 it restricted the States from taxing national bank shares at a greater rate than they assess 'upon other moneyed capital * *  * coming into competition with the business of national banks.' Hence, if a State taxes national bank shares at a greater rate than it assesses against the 'moneyed capital' of savings and loan associations-state or federal-which is used in significant competition with a substantial phrase of the business of such banks, it violates § 5219. That is exactly what Michigan has done here.

The proper interpretation and application of § 5219 to particular fact situations has been hammered out by the decisions of this Court, case by case, over the course of nearly a century. They have squarely met and decided, adversely to respondents, every question in this case. Finally, the Hartford and Minnesota cases brought a settled peace to this field that has endured until today-for 34 years. The obvious reason, I submit, is that they are right. There is, I respectfully submit, no call or reason to depart or deface those cases. And doing either will only again unsettle the law in a field where certainty of the applicable rules is nearly as important as their substance.

Under the law, settled for at least the last 34 years, appellant has proved every element of its case, and is entitled to recover. I would therefore reverse the judgment.