
    Shotweel v. Moore.
    Taxation— Conversion of taxable property into “greenback” — Constitutional law —See. 2, art. 12, Const. — Sec. 2737 Reo. Stats.
    
    1. Subdivision 16 of section 2737 of the Revised Statutes of Ohio, which provides that the statement of each person required to list property, shall get forth “ the monthly average amount or value for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in, or converted into bonds or other securities of the United States,” is not in conflict with section 3701 of the Revised Statutes of the United States,which provides that, “ all stocks, bonds, treasury notes and other obligations of the United States, shall be exempt from taxation by, or under state, municipal or local authority.”
    2. Thfe method provided in subdivision 16 of section 2737, for estimating the taxable value of property converted during the year into non-taxable securities, is not in conflict with section 2,of article XII, of the constitution of this state, which requires that laws shall be passed, taxing all property by a uniform rule, according to its time value in money.
    (Decided March 27, 1888.)
    Error to the Circuit Court of Harrison County.
    The original action was commenced in the court of common pleas of Harrison county, by Albert J. Harrison, as treasurer of Harrison county, against Stewart B. Shotwell, the plaintiff in error. The original petition reads as follows:
    “The plaintiff, Albert J. Harrison, says he is the duly elected, commissioned, qualified, and acting treasurer of Harrison county, Ohio. Plaintiff says that personal taxes to the amount of twenty-three hundred and twenty-four dollars and eighty-nine cents stand charged against the defendant, S. B. Shotwell, on the duplicate of taxes of said county, placed in the hands of this plaintiff for collection by the auditor of said county, which said taxes are due and unpaid, and said defendant is indebted to said Albert J. Harrison, as treasurer of said county, in the sum of $2,324,89, the sum charged against defendant as tax as aforesaid.
    
      “ Wherefore plaintiff says there is due to him, as such treasurer, from said defendant, $2,324.89, with interest from this date, February 19, 1886. And he therefore asks judgment against said defendant for said sum of $2,324.89, with interest from February 19th, 1886, and costs of this suit.”
    The defendant answered as follows :
    “ The defendant, S. B. Shotwell, says that the taxes claimed, to-wit, $2,324.89, were put on and charged against him by the auditor of said county on the additional duplicate on the several sums placed on said duplicate lately, to-wit, February, 1886, as follows:
    “For the year ’81, $30,900.
    “ For the year ’82, 26,900.
    “ For the year ’83, 29,550.
    “ For the year ’84, 18,560.
    “ For the year ’85, 7,420.
    “ And he says that said sums were not legally put upon said duplicate, and the taxes thereon were not duly levied as alleged. He says he made no return of said several sums for taxation, in said several years, because he says that he held said sums, (or nearly said several sums, but not quite so much,) when he was required to list and take account of said property for assessment, to-wit, on the day preceding the second Monday of April in said respective years, in United States obligations, to-wit: United States notes, commonly called greenbacks, and he claims that said obligations are not liable to state taxation by law, either directly or indirectly, and that the said county auditor had no legal authority to place said several amounts on the duplicate, and assess said taxes thereon; and the said treasurer has no legal authority to collect the same. He, therefore, denies that he is indebted to the plaintiff in the sum of $2,324.89, or any other sum for unpaid taxes as aforesaid. Wherefore, he prays judgment, and that plaintiff be enjoined from collecting or attempting to collect the same.”
    The plaintiff filed a reply.
    The parties having waived a jury, the cause was tried to the court, and the parties, with a view of excepting to the decision of the court upon the questions of law involved in the trial, and having requested the court to state in writing the conclusions of fact found, separately from the conclusions of law, and the testimony having been heard, the court found its conclusions of fact, which are sufficiently stated in the opinion herein. And the court of common pleas being of opinion that upon the facts so found, the law of the case was with the defendant, it was thereupon considered that the defendant recover of the plaintiff his costs expended, taxed at-dollars.
    The circuit court, on petition in error filed by Samuel A. Moore, as the then treasurer of Harrison county, reversed the judgment of the court of common pleas, and adjudged that Samuel A. Moore, as treasurer of Harrison county, recover of Stewart B. Shotwell the sum of twenty-four hundred and twenty-two dollars and seven cents debt.
    To reverse the judgment of the circuit court, this proceeding is instituted.
    
      Harrison, Olds & Marsh and J. M. Estep, for plaintiff in error.
    1. It is well settled that securities of the United States, including treasury notes, popularly known as “ greenbacks, ” are not subject to taxation under the laws of a state, to any extent, directly ; and that they cannot be taxed, to any extent, indirectly, by the taxing the means converted into or invested in such securities. A state law for that purpose is unconstutional, whether it imposes the tax on the securities eo nomine, or includes them in the aggregate of the tax payer’s property to be valued, like the rest, at its worth.
    The taxing power, so far as it is reserved to the states, and used within constitutional limits, cannot be controlled or restrained by the judiciary, either state or national, the prudence of its exercises not being a judicial question. But a' state tax on the loans of the federal government is a restriction upon the constitutional power of the United States to borrow money, and if the states had such a right, being in its nature unlimited, it might be so used as to defeat the federal power altogether. The states, therefore, cannot retard, or impede, or burden, to any extent, or in any manner control, the exercise of the constitutional power of the United States to borrow money.
    It is evident that the right of exemption from taxation on so much property as may have been lent to the government of the United States, cannot, as the general assembly of the state of Ohio seem to assume, be made to depend on the mode of valuation. The immunity from taxation arises from the fact of having lent money to the government and taken evidences of debt in lieu thereof. Hence, the state cannot tax the security in any way. It cannot tax the money invested in the security. For to tax the means put into the security would be, in effect, to tax the security. M’Culloch v Maryland 4 Wheat. 316; Bank of Commerce v. New York, 2 Black, 620; Bank Tax Case, 2 Wall. 200; The Banks v The Mayor, 7 Wall, 16; Weston v Charleston, 2 Pet. 449; New York Bank v. Supervisors, 7 Wall. 26.
    The Revised Statutes of the United States, approved June 22, 1874, contain the latest expression of congressional will on this subject, as follows : “Sec. 3701. All stocks, bonds, treasury notes and other obligations of the United States, shall be exempt from taxation by, or under state or municipal or local authority.” Rev. Stats. U. S. 736.
    2. It follows that subdivision 16 of section 2737 of the Revised Statutes of Ohio is in direct conflict with the meaning, intention, spirit and effect of section 3701 of the Revised Statutes of the United States, and is therefore inoperative and of no effect.
    Precisely the same provision was enacted by the general assembly of the state of Indiana, but the supreme court of that state in the case of Ogden v. Walker, 59 Ind. 460, held the provision to be inoperative and void.
    3. Counsel for the defendant in error seem to claim that United States securities are not “ exempt from taxation by or under state or municipal or local authority,” if the motive of the person acquiring them by purchase is to lessen the amount of property he is required to list for such taxation. This claim is wholly untenable, Stilwell v. Corwin, 55 Ind. 433; 
      People v. Ryan, 88 N. Y. 142; Thayer v. Boston, 124 Mass. 132; Savary v. Georgetown, 12 Met. 178.
    It is selfevident that such securities need not be owned for any specific time to entitle the holder of them to all the benefits and advantages of their ownership, including the benefit or advantage of their exemption from taxation according to the supreme law of the land. Anyone may acquire title to them when he pleases, and part with them at his pleasure. The fact that the Ohio statute limits the tax upon the moneys, credits or other effects so invested or converted, to the monthly average amount or value thereof for the time they were held or controlled within the preceding years does not remove the objection to its validity, for the reason that taxation, in that mode of investments in non-taxable government securities deprives the person so investing his means in such securities of the full benefit and advantage of the act of congress exempting them wholly from taxation either directly or indirectly.
    The original action brought against the plaintiff in error in the court below was an action at law for the recovery of a personal judgment for money only. The question in tho case was purely of legal right and legal liability. Hence Mitchell v. Leavonworth County Commissioners, 91 U. S. 206, and other cases cited by adverse counsel have no application to the case in hand.
    4. The methods provided in subdivision 16 of section 2737, for estimating the taxable valuation to be placed on property converted during the year into non-taxable securities, are in conflict with section 2 of article 12 of the constitution of the state, which requires that laws shall be passed taxing all property “ by a uniform rule ” in this, that the rule for tho valuation of property converted into non-taxable securities is different from that provided for the valuation for purposes of taxation of other kinds of property. Western Union Tel. Co. v. Mayer, 28 Ohio St. 522; Baker v. Cincinnati, 11 Ohio St. 534, 541; Exchange Bank v. Hines, 3 Ohio St. 1; State v. Township of Readington, 36 N. J. Law, 70; Railroad Tax Case, 8 Sawyer, 238; s. c. 13 Fed. Rep. 722.
    
      The assessment of property taxed is the ascertainment of its value. The value, on a given day, of the property of an individual, and its assessment for taxation on such value, is a different mode of assessment based upon the monthly average value or amount thereof during the year preceding a given day.
    The question whether the provision in the tax law providing for the returns- by merchants and manufacturers of the monthly average value of their stock held during the year is authorized by section 2 of article 12 of the constitution has not been presented to this court. It is true there is a dictum of Judge Bartley in the case of Exchange Bank v. Hines, 3 Ohio St. 1, to the effect that the provision is not in conflict with the constitution. But the question Aras not involved in that case. Moreover the tax upon merchants and manufacturers is in the nature of a charge upon a business which may be krwfully levied. Cin. Gas L. & C. Co. v. State, 18 Ohio St. 237; Western Union Tel. Co. v. Mayer, 28 Ohio St. 522.
    5. Even if it Avere held that each of the foregoing positions is untenable, the judgment of the circuit court is erroneous because it includes the amount of the tax and penalty upon the money Avhich the plaintiff in error had on deposit in bank during the year 1881.
    Under the system for the assessment and taxation of property in this state, and for levying taxes thereon according to its true value in money, the statement must show the property in the possession or under the control of the person making it on the day preceding the second Monday of April of that year.
    The tax is levied upon the personal property and effects so returned for taxation. Upon the making of the return, the county auditor is required to levy the tax upon the property returned for the current year. The levy is a yearly tax. And one yearly levy of a tax exhausts the poAver for the year. Cooley Tax. 256. A tax is prospective, not retrospective. A tax can be laAvfully levied but once in the same year upon the same property. Otis v. Boston, 12 Cush. 48; Cooley Tax. 164.
    
      The plaintiff in error had returned for taxation the personal property and effects owned by him on the day preceding the second Monday of April, 1880, and the same was accordingly taxed for the year beginning on that day in that year, and ending on the day preceding the second Monday of April, 1881. It could not, therefore, be subjected to taxation again during that year.
    
      I). A. Hollingsworth and J. M. Ganen, for defendant in error.
    All agree that “greenbacks” are non-taxable for state'or municipal purposes, either directly or indirectly. The United States statutes not only prohibit such taxation, but the credit and safety of the general government require that all its securities should be protected from local tax regulations. Bank of Commerce v. New York City, 2 Black, 620; The Banks v. The Mayor, 7 Wall. 16. Therefore the cases cited by counsel for plaintiff in error are not controverted by us either in theory or on principle. But we insist that they have no application in this case. The findings of fact show that the temporary conversion of the deposits of plaintiff in error into “ greenbacks” was expressly for the purpose of evading taxation. They were not so converted for any legitimate use. The “greenbacks” continued in the bank, and might properly be said, in the language of section 2737 of the Revised Statutes of Ohio, to be “moneys on deposit subject to order.”
    Chief-Justice Waite, in Mitchell v. Leavenworth County Commissioners, 91 U. S. 206, characterizes a similar transaction as a “ scheme devised to escape his proportionate share of the burdens of taxation,” and he judicially rebukes it in unmistakable language.
    It was ably urged in argument, in that case, that the motive of Mitchell in converting his deposits into “ greenbacks ” was immaterial, and that the tax officers of the state of Kansas could not look beyond the nature and character of the property on the one day as of which the personal property of the state was required to be listed. But the chief justice was unwilling, even by silence, on a point not strictly before the court, to seem to sanction such view of the law, and he therefore characterized the transaction as a questionable “ scheme,” and condemned it as such. So anxious was he not to have the case understood as an authority limited in scope to purely equity causes, that he added the further remark that his remedy, “ifhe has any,” is in a court of law.
    The trial court found that the monthly average value of the moneys of the plaintiff in error was exactly equal to the amount drawn out of bank and converted into “ greenbacks,” and therefore it is a matter of no moment, in the consideration of this case, to determine whether the “ greenbacks ” which the plaintiff in error had on special deposit, were in fact taxaable or not.
    Bnt it is urged that the methods provided in subdivision 16 of section 2737 for estimating the taxable valuation to be placed on property converted during the year into non-taxable securities, is in conflict with section 2 of article 12 of the constitution of the state, in this, that the rule for the valuation of property converted into such securities is different from that provided for other species of property. The above section is a limitation on the legislative power of the general assembly conferred by section 1, article 2, and must be strictly construed, or, rather, it must not be extended by implication beyond its fair and legitimate meaning.
    Absolute uniformity in the method of estimating the value of different classes of property for taxation is impossible. The mode and agencies employed in listing and valuing the same necessarily differ according to the nature and character of the property. Nor can the burdens of taxation be made, in practice, to rest with exact equality on all property. The most that can be done is to approximate as nearly as possible to that equality of burden which is contemplated as well as positively enjoined in the organic law of the state. A fair and reasonable construction, therefore, of the above section of the constitution, would seem to require the general assembly to pass such laws, in regard to taxation, as will not discriminate in principle or in the rate to be imposed between different classes of property, leaving to its discretion the manner of ascertaining the value, and tbe time as of which taxes shall be levied, on any particular class. Accordingly laws have been passed providing separate methods of ascertaining the value for taxation of different classes of personal property. The merchant or manufacturer returns the monthly average value of his stock held during the year, but persons engaged in other vocations are required to return the amount and value held on a particular day. Exchange Bank v. Hines, 3 Ohio St. 1; Wagoner v. Loomis, 37 Ohio St. 571; Pelton v. National Bank, 101 U. S. 143; Cummings v. National Bank, 101 U. S. 153; National Bank v. Kimball, 103 U. S. 732.
    This provision of the statute simply provides a method for correctly estimating the value of property owned during a part of the year and converted into non-taxable securities, so that the owner may be assessed on such property proportionately for the time he may have held the same. By no process of reasoning can it be said that this is taxing the securities so held on the day property is required to be returned for taxation; it is simply taxing the property of the citizen for the time he holds the same and receives for it the protection of the state.
   Dickman, J.

It is not claimed by the defendant in error that United States notes, commonly called greenbacks, are directly or indirectly subject to taxation, by or under state or municipal authority. They are obligations of the United States, and that their value may not be impaired, and that they may promote the object for which they are issued, they should be beyond the taxing power of the states. The authority to. borrow money on the credit of the United States is among the enumerated powers expressly vested by the constitution in the national government, and, as within the sphere of those powers, that government has been made supreme, the states cannot, by taxing its notes or other obligations, impair its ability to raise money for necessary governmental • purposes. Bank v. Supervisors, 7 Wall. 26; The Banks v. Mayor, 7 Wall. 16. The constitutional grant to borrow money negatives, in itself, the riakt of the states to control or restrain, by any method, the exercise of the granted power. Yet, +o preserve the credit and value of the national securities and obligations, congress has enacted, by section 3701 of the Revised Statutes of the United States that, all stocks, bonds, treasury notes, and other obligations of the United States, shall be exempt from taxation by or under state or municipal or local authority.”

The question that engages our attention at the' outset is, whether subdivision 16, of section 2737, of the Revised Statutes of Ohio, is, in its operation and effect, in conflict with the meaning and intention of section 3701 of the Revised Statutes of the United States. By the tax-laws of Ohio, each person required to list property must annually make out and deliver to the assessor, a statement, of all the personal property, moneys, credits, investments in bonds, stocks, joint stock companies, annuities, or otherwise, in his possession, or under his control, on the day preceding the second Monday of April of that year, which he is required to list for taxation as owner, holder or otherwise. As provided by subdivision 16, of section 2737, the person listing must truly and distinctly, set forth in such statement, “ the monthly average amount or value, for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in or converted into bonds or other securities of the United States or of this state, not taxed, to the extent he may hold or control such bonds or securities on said day preceding the second Monday of April.”

As conclusions of fact found by the court of common pleas, the plaintiff' in error, on the Saturdays preceding the second Monday of April, from the year 1881 to the year 1885, inclusive, had moneys in varying amounts, on deposit in bank at the town of Cadiz, in Harrison county, to his credit as a general depositor. In each of those years, and on the Saturdays above named, he checked out the balance then standing to his credit, which, at his request, was paid to him in United States securities, commonly denominated greenbacks.” These securities he inclosed, on each occasion, in a package with his name thereon, and the officer of the bank placed it in the bank’s safe for him. At n.o time did he carry the securities out of the bank building. In each year, and in the early part of the next week after converting his balances into United States securities, he returned to the bank, opened his package, delivered the contents to an officer of the bank, and the same were placed to his credit as a general depositor. In drawing out the balance due him, it was his design, in each instance, to obtain non-taxable securities and thus evade taxation on, such balance. During the interim between the withdrawal of his balance and his subsequent deposit as a general depositor, he was the absolute owner of all moneys so withdrawn by him; and in no year, did he list any portion of such moneys for taxation; nor did he include in his tax return, the monthly average amount or value, for the time he held or controlled the same within the preceding year, of any moneys, credits, or other effects, within that time invested in or converted into United States securities. But the monthly average amount of moneys, so invested by the plaintiff in error in such securities, within the years respectively preceding the drawing out of such moneys, was the amount so drawn out at the end of the year. This monthly average amount of moneys held and controlled during each year preceding the time of their conversion into United States notes, was placed by the auditor upon the duplicate, which was delivered to the treasurer for collection; and it is contended, that the government securities were thereby indirectly subjected to state taxation, in violation of the act of congress.

It is manifest from an examination of the provisions of subdivision 16 of section 2737 of the Revised Statutes, that it was not the legislative intent, nor does the statute operate, to subject to taxation the treasury notes, or other obligations of the United States. Personal property converted into those securities may be taxable, but the securities are thereafter exempt from taxation. The statute recognizes and enforces the equitable principle that personal property held during a part of the year and then converted into non-taxable securities, should be taxed in proportion to the time it is so held before being thus converted. The owner is required to list for taxation the monthly average amount or value of moneys, credits, or other effects,'during the time he held or controlled the same within the preceding year. A statutory guide for ascertaining such monthly average is afforded in the mode prescribed by section 2740 of the Revised Stotutes, for estimating the average value of the stock in trade which a merchant shall have had, from time to time, in his possession, during the year next previous to the time of making his statement to the assessor. That section provides that the average shall be made up by taking the amount in value on hand, as nearly as may be, in each month of the next preceding year in which the person making such statement shall have been engaged in business, adding together such amounts, and dividing the aggregate amount thereof by the number of months that the person making the statement may have been engaged in business during the preceding year. The monthly average amount or value of moneys, credits, or other effects invested in non-taxable securities being once determined, that amount, upon a reasonable interpretation of the statute, should be taxed for that portion of the year, during which the person listing held or controlled the property in its original shape. If, for example, in the month of October, six months prior to the day as of which property is to be listed for taxation, a citizen of the state should invest a sum of money in United States notes, as it would contravene the federal statute to tax the securities into which the money had been merged, so, to exempt the money from taxation for the six months it had received the protection of the state, wTould be unequal and unjust. Nor can the taxing of money as such up to the time it assumes the form of government notes, or other obligations of the United States, be properly construed as virtually imposing a tax upon those non-taxable securities. The burden of taxation is thrown off, as soon as the taxable personal property is converted into United States securities.

The principle of taxation, for a proportionate period of the year, is embodied in the statutory mode of taxing unincorporated banks and bankers. Persons commencing the business of banking after the day preceding the second Monday of' April — the average value of whose personal property intended to be employed in such business shall not have been previously entered on the assessment list for taxation — are required to pay, into the county treasury, a sum which shall bear the same proportion to the levy for all purposes, on the average value so employed, as the time from the day on which they engaged in such business to the day preceding the second Monday in April next succeeding, shall bear to one year.

While the state statute cannot operate to subject to taxation government obligations known as “ greenbacks,” it could not be effective, in any degree, to bring them into disfavor, or to discourage investment in that class of federal securities. The statute may .aid in preventing persons using United States notes, as a means of fraudulently evading their duty to the state as tax-payers; but, the effect of the statute is to hold out an inducement, or make it an object to permanently convert idle and unproductive taxable property into government obligations, at the beginning instead of the end of the year — to increase the duration of investment — and thus stimulate the demand for such non-taxable securities.

It is urged, however, in argument of counsel, that the method provided in sub-division 16, of section 2737, of the Revised Statutes, for estimating the taxable value of the property therein designated, is in conflict with section 2, of Article XII of the constitution of the state, which requires the passage of laws taxing all property “by a uniform rule according to its true value in money,” in this, that the rule for the valuation of property converted into non-taxable securities, by estimating its monthly average amount or value, is different from that provided for the valuation of other kinds of property, which are assessed according to their value on a specified day. The question raised carries with it the obvious suggestion that property must be returned for taxation at its true value in money at a time when it is a legitimate subject for state taxation, and not when it has ceased to be such, through the act of the owner himself, in seeking an investment in non-taxable securities.

It is true that Article XII is not a grant of power, but a regulation of power already granted — not a delegation of authority to raise revenue, but a limitation of that power, as conferred by section 1 of article II of the constitution. Baker v. Cincinnati, 11 Ohio St. 534; West. Union Telegraph Co. v. Mayer, 28 Ohio St. 521. But, while the constitution prescribes that all property shall be taxed by a uniform rule, with a view to apportioning the burdens of government, so that each person shall contribute so much as is his reasonable proportion, and no more, it does not prescribe the mode of ascertaining-the taxable valuation of property, or the time as of which the value is to be determined. The method of ascertaining the true value of property in money, and the time as of which the same shall be listed for taxation, have been left to the wisdom of the legislature. “ Whenever it is made a requirement of the state constitution that taxation shall be upon property according to value, such a requirement implies an assessment of valuation by public officers, at such regular periods as shall be provided by law.” Cooley, Const. Lim. 496. And where the constitution contains no provisions upon this subject, “the necessity for valuation,” says the same author, “ is nevertheless implied, though the mode of making it, and the periods at which it shall be made, are left to the legislative discretion.” Ib. See also, Exchange Bank v. Hines, 3 Ohio St. 1, 22.

In the exercise of that discretion, the general assembly, for the purposes of taxation, has provided for estimating the value of certain species of property by different modes and agencies; for ascertaining the value as at different times; and for listing property as of different days. Thus, the person making a tax-return, may exhibit to the assessor certain enumerated articles, and allow him to fix the value thereof, while he must verify by his oath the value of all other items included in his return. The merchant is required to set forth in his return the monthly average value of personal property appertaining to his business, and which he has held during the previous year; the manufacturer, the monthly average value of all articles had on hand during the year, for the purpose of being used in manufacturing; and unincorporated banks and bankers, the monthly average amount of certain specified items owned or standing on their books during the preceding year; while numerous other classes of property are assessed according to their value on a particular day. And while personal property generally must be listed for taxation as of the day preceding the second Monday in April, shares in incorporated banks are listed, as of the Wednesday next preceding the second Monday of May in each year. These and other diversities in valuation, grow out of difficulties necessarily incident to the ascertainment of the true value of jn’operty in money. There are so many influences, tangible and intangible, which cause values to fluctuate from time to time, that absolute equality and uniformity of valuation are unattainable, and an approximation thereto is all that is practicable. But, because of such unavoidable inequalities in valuations for taxation, we are not to conclude that there is any material variation from the principle of taxing all property by a uniform rule, according to its true value in money. Wagoner v. Loomis, 37 Ohio St. 571; National Bank v. Kimball, 103 U. S. 732. Taxation of one class of personal property, based upon an estimate of its monthly average value during the next preceding year, while the value of a different class, on a specified day, is adopted, is not a departure from the rule of uniformity. The application of the principle of average valuation to the business of merchants and manufacturers, has long received the legislative sanction of this state, without, in our judgment, infringing the constitution; and we discover no valid reason why the same principle may not' be applied to the monthly average amount of moneys invested in United States securities. Instead of being at variance with a uniform rule or rate of taxation, it may properly be regarded as an authorized legislative mode of preventing an evasion of the law, and securing a fair basis for an equal and just apportionment to the property owner, of the necessary burdens of taxation. The residue of a merchant’s stock in trade, held at the time when by law he is required to make his tax return, would prove a very deceptive criterion of the taxable personal property held from month to month during the preceding year. It has been argued,” says Bartley, C. J., in Exchange Bank v. Hines, supra,that stock in trade is subject to a different rule of taxation from that which is imposed on other property. This is a mistake. The difference consists not in the rule or burden of taxation; but simply in the mode of ascertaining the valuation. The principle of valuing by an average has been introduced because stock in trade is constantly changing the article of its investment, and varying in the quantity on hand, from month to month.”

It is clear that it was the design of the plaintiff in error, in annually drawing his balance from the bank, and converting it into United States notes, to avoid the payment of his just proportion of taxes; and that the transaction was, in effect, a fraud upon the revenue. And it is contended that, where the investment in non-taxablc securities is colorable only — not designed to be permanent, but made to evade taxation, and with the predetermined purpose of reconverting the securities at the earliest day after the assessor’s visit — a party cannot in this manner, acquire rights which a court, either of law or equity, will enforce. How far the rights of a party, in a court of law, may depend upon the motives which actuated him in making the investment, the decision of the case at bar does not require us to determine. But it is now well settled that, where a party for the sole purpose of escaping taxes, converts his personal property into United States securities, a court of justice, sitting as a court of equity, will not lend its aid for the accomplishment of any such purpose.

In Mitchell v. Leavenworth County Commissioners, 91 U. S. 206, a party for the purpose óf evading the payment of a tax on his money on deposit, which the law of Kansas required to be listed for taxation March 1, in each year, withdrew, it February 28, from a bank where it was subject to his check, converted it into notes of the United States, and deposited them to his general credit March 3; and the state court passed a decree, dismissing a bill in equity by him filed to restrain the collection of the tax thereon. It was held, Waite, C. J., delivering the opinion of the court, that the decree was correct •; and that, although such notes were exempt from taxation by or under state or municipal authority, a court of equity would not use its extraordinary powers, to promote such a scheme devised for the purpose of enabling a party to escape his proportionate share of the burdens of taxation. See also Albany City Bank v. Maher, 19 Blatchf. 182.

The original action herein was at law, with prayer for a money judgment. But the county treasurer claiming protection under the duplicate, was clothed with power, at any time to distrain sufficient goods and chattels of the defendant, if found within his county, to pay taxes remaining due. The defendant, therefore, in his answer, invoked the equity powers of the court, and prayed that the plaintiff be enjoined from collecting or attempting to collect the amount charged against him on the duplicate. The court rendered judgment for the defendant instead of granting an injunction. But, had the treasurer proceeded to distrain, and had the plaintiff in error sought to enjoin proceedings, it is clear that the latter would have had no standing in a court of equity.

Judgment affirmed,.  