
    Simeon B. Smith v. First National Bank of Tecumseh.
    
      Tax upon capital stock, of national banks. A specific tax, laid by the state ‘'upon the capital stock paid in ” of the national banks, is directly opposed to the law of Congress upon that subject; and is, therefore, void.
    
      Costs in an amicable suit. In an amicable suit to test the validity of a statute, it is proper to deny costs to the prevailing party.
    
      Heard and decided January 11th.
    
    Error to Lenawee Circuit.
    The legislature of 1867, passed an act- — Sess. L. 1867, vol. 1, p. 168 — which provided that each bank and banking association, organized under the laws of the United States, doing business in the State of Michigan, should pay an annual specific tax, to the state, of one per cent, upon the capital stock paid in of said banks, less the value of the real estate owned by said banks, which should be in lieu of all other taxes upon said banks, or the shares thereof held or owned by individuals; except that the real estate held or owned by said banks should be subject to taxation like other real estate.
    The defendant in error in this suit refused to pay the tax assessed under this act, and the Auditor General issued to the plaintiff in error, who was sheriff of Lenawee County, his warrant for the collection thereof. Thereupon the plaintiff in .error, by virtue of such warrant, levied upon currency belonging to the bank, sufficient to satisfy the tax and the fees for collection, and in order to test the legality of this levy, a case was agreed upon by the parties, and submitted to the court below, presenting the question whether the bank was entitled to recover of the sheriff the amount of the currency levied upon as in an action of trespass. The court below gave judgment for the bank.
    
      
      D. May, Attorney General, for plaintiff, in error.
    
      A. L. Millerd, for defendant in error’.
   By the Court: '

This case is too plain for argument. The Act of Congress under which the national banks are organized allows the taxation by the States of the shares of stock in the banks, but not of the capital stock itself. The decisions by the Supreme Court of -the United States in Van Allen v. The Assessors, 3 Wall. 573; People v. Commissioners, 4 Id. and Bradley v. People, Id. 459, fully cover the case. The judgment must be affirmed.

Mr. Millerd, asked for costs, but the Court held that in an amicable suit like this to determine the validity of a statute it was proper not to award costs.

Motion denied.  