The complaint in the suit, which was put in in the state court, contains six paragraphs, setting forth (1) the status of the plaintiff; (2) the status of the defendant, and an allegation that the banking house of the plaintiff was situated, and its business was carried on, in said second collection district; (3) that on December 24, 1881, the plaintiff received from the defendant a notice stating that the tax assessed against it, from July 1, 1864, to May 31, 1881, amounting to $121,215.34, was due and payable on or before the last day of December, 1881, and that, unless it was paid by that time, it would become his duty to collect it, with a penalty of 5 per cent additional, and interest at 1 per cent. per month, the tax being one upon deposits; (4) that the plaintiff, apprehending that if it did not pay the tax on or before December 31, 1881, the defendant would levy upon its property to satisfy the tax, paid to him on that day the sum of $113,085.62, being the amount of the tax, without including any penalty, but that, before paying such amount, the plaintiff delivered to the defendant a written protest against the payment of the tax on deposits during the period from July 1, 1864, to November 30, 1879, because a portion of that tax was assessed upon moneys transmitted to the plaintiff by the treasurer of the [148 U.S. 412, 414] state of New York, for the payment of debts of the state, and which were not 'deposits,' within the meaning of the statute of the United States, and because the remainder of such tax was assessed upon moneys deposited with the plintiff by the United States Trust Company of New York, on which the latter company had already paid to the United States a tax as upon deposits, but that the defendant, notwithstanding such protest, insisted upon the payment of the tax, and required the plaintiff to pay it; (5) that said tax was in part unlawfully assessed against the plaintiff, and it was not legally liable to pay the same, for the reason that $31,021.25 of said tax was assessed against it on account of moneys transmitted to it by the treasurer of the state of New York, and received by the plaintiff as the agent of the state, to be applied by the plaintiff to the payment of the debts of the state, and the moneys were not 'deposits,' within the meaning of the revenue laws of the United States, and for the further reason that $64,518.73 of said tax was assessed against the plaintiff on account of moneys received by it from the United States Trust Company of New York, upon which the latter company paid to the United States a tax as deposits; and (6) that, before the commencement of the suit, the plaintiff appealed to the commissioner of internal revenue of the United States, and claimed that $95,539.98 of said tax was erroneously assessed and paid, for the reasons before mentioned, and that the plaintiff was entitled to have that sum refunded, and that said commissioner rejected said appeal and claim, for the reason, as stated by him, that the amount was legally assessed and collected. The complaint prayed judgment for $95,539.98, with interest from December 31, 1881
The answer of the defendant, which was put in in the circuit court of the United States, admitted the allegations contained in paragraphs 1, 2, 3, 4, and 6 of the complaint, and put in issue the allegations of paragraph 5, and averred that the $113,085.62 had been paid to the defendant, as collector of internal revenue, as a tax on the deposits of money with the plaintiff, subject to payment by check or draft, or represented by certificate of deposit or otherwise; that that sum [148 U.S. 412, 415] was justly due as such tax; and that he had long since covered the same into the treasury of the United States.
The case was tried before Judge Lacombe and a jury, on the 22d of October, 1888. There is a bill of exceptions, which states that the evidence of the respective parties is set forth in the following agreed statement of facts:
New York, _____ ___, 18__.
The contract mentioned in paragraph 2 of the agreed statement of facts was made July 13, 1840, between 'the people of the state of New York, by their agents, the commissioners of the canal fund of the said state, of the first part,' and 'the president and directors of the Manhattan Company, in the city of New York, of the second part.' The material parts of the contract are as follows:
The provisions of the statute of New York, referred to in paragraph 2 of the agreed statement of facts as 'Exhibit B,' (title 4, c. 8, pt. 1, Rev. St.,) are as follows:
At the trial, the foregoing being all the evidence on both sides, the court directed a verdict for the defendant, to which direction the plaintiff excepted. The verdict having been rendered, a judgment was entered thereon against the plaintiff, and for costs. The plaintiff has sued out a writ of error from this court.
John W. Butterfield, for plaintiff in error.
Mr. Justice BLATCHFORD delivered the opinion of the court.
The statute of the United States under which the tax was assessed was section 110 of the act of June 30, 1864, c. 173, (13 St. p. 277,) afterwards embodied in section 3408 of the Revised Statutes, which latter section reads as follows: 'There shall be levied, collected, and paid, as hereinafter provided: First. A tax of one twenty-fourth of one per centum each month upon the average amount of the deposits of money, subject to payment by check or draft, or represented by certificates of deposit of otherwise, whether payable on demand or at some future day, with any person, bank, association, company, or corporation, engaged in the business of banking.' Although this tax on deposits in banks was repealed by the act of congress of March 3, 1883, c. 121, (22 St. p. 488,) yet the latter act expressly excepted 'such taxes as are now due and payable.'
It is contended for the plaintiff (1) that the contract before set forth, made July 13, 1840, under the provisions of which the money in question was sent by the treasurer of the state to the plaintiff, and the manner in which that money was credited and disbursed by the plaintiff, show that the ordinary relation of banker and depositor never arose; that congress did not contemplate the including of such money for purposes of taxation, under the general title of 'deposits,' as used in section 3408; and that the bank, as to the funds in question, was merely the salaried disbursing agent of the state and a trustee for the creditors of the state ; (2) that the money paid by the plaintiff, which it now seeks to recover, was the proceeds of a tax collected by the agent of the United States, and levied upon all the money in the hands of the plaintiff, including money of the state of New York, then in the possession of an agent of that state, and held for immediate disbursement by that agent to the creditors of the state, such agent receiving a salary to effect such disbursement; that such tax was, to that extent, a tax upon the revenues of the state in the hands of its disbursing agent; and that such money could not [148 U.S. 412, 424] be included constitutionally in the term 'deposits,' as used in the statute of the United States.
The money in question was deposited with the plaintiff by the treasurer of the state of New York, to be afterwards disbursed by the plaintiff, as agent of the state, for certain purposes designated in the statute of the state and in the contract of July 13, 1840. The money, when so deposited, became the property of the plaintiff, and was credited by it to the treasurer of the state in account, and was thereafter drawn for by drafts made by the treasurer of the state, and sent to the plaintiff. If such money had been lost or stolen while in the hands of the plaintiff, the plaintiff, and not the state, would have borne the loss. The identical money received by the plaintiff from the treasurer of the state was not to be returned to the treasurer, or paid to his drawee, or kept distinct from the other funds of the plaintiff. It was not only a deposit of money, but was subject to payment by check or draft, and was payable either on demand or at some future day, all within the terms of the taxing statute of the United States. That statute covered general deposits, and not special deposits.
There is no foundation for the contention on the part of the plaintiff that a trust was created in its hands in favor of each creditor of the state intended to be paid through the plaintiff, as a consequence resulting from each deposit of money made by the treasurer of the state with the plaintiff. The money so deposited was not placed, by the mere fact of the deposit, irrevocably beyond the control of the state. Neither the money credited to the account called 'Interest New York State Stocks, Canal Loan,' nor that credited to the account entitled 'Interest Loan for Payment of Bounties to Volunteers,' became, by such respective credits, the property of the holders of the securities for the respective loans, so as to create a title in them to the money as interest money. If the money had been withdrawn by the state from the plaintiff, the latter could not have been liable therefor to the creditors holding such securities.
By the contract of July 13, 1840, the plaintiff agreed to act as agent of the state in paying out from the deposits made [148 U.S. 412, 425] with it by the state sums of money in favor of the holders of the obligations of the state, to pay such holders the interest on such obligations. The plaintiff occupied two relations to the state,-one that of debtor as a bank for the money deposited with it by the state, and the other that of agent of the state to pay out from the money deposited, if it remained on deposit, money for certain specified purposes. The tax was assessed on deposits of money 'subject to payment by check or draft, or represented by certificates of deposit or otherwise, whether payable on demand or at some future day;' and the clear purpose of the statute was to tax deposits of money in the situation of those in question. There is nothing in the contract of July 13, 1840, to relieve the plaintiff from its liability as a bank for the money deposited with it by the state. The plaintiff did not hold the money as an agent of the state, but was such agent only to disburse the money. The theory that the plaintiff was a trustee of the money deposited, for certain cestuis que trustent, on the ground that the right to the money had become vested, by the mere fact of the deposit, in the creditors of the state, would make it necessary that it should be impossible for the state to withdraw the deposit, which was not the fact.
We see nothing to affect these views in the cases cited by the plaintiff, of Mechanics' Bank v. Merchants' Bank, 6 Metc. (Mass.) 13; Sharpless v. Welsh, 4 Dall. 279; Van Alen v. Bank, 52 N. Y. 1; Martin v. Funk, 75 N. Y. 134; Machine Works v. Kelley, 88 N. Y. 234; People v. Bank, 96 N. Y. 32; National Bank v. Insurance Co., 104 U.S. 54 ; Libby v. Hopkins, 104 U.S. 303 ; Pennell v. Deffell, 4 De Gex, M. & G. 372; Frith v. Cartland, 2 Hem. & M. 417.
It is distinctly provided by section 8, tit. 4, c. 8, pt. 1, Rev. St. N. Y., that 'all moneys directed by law to be deposited in the Manhattan Bank, in the city of New York, to the credit of the treasurer, shall remain in said bank, subject to be drawn for as the same may be required.' This shows clearly that the money put into the plaintiff's bank by the state is 'deposited' there, and is to lie [148 U.S. 412, 426] there, to the credit of the treasurer of the state, and may be drawn at any time when required by the state. Section 9 also shows that the money so deposited is considered by the state as 'deposits.' It thus becomes 'deposits of money, subject to payment by check or draft,' within the meaning of the statute of the United States imposing the tax.
Nor do we perceive any soundness in the view that the money on which the tax in question was assessed was a part of the revenue of the state in the hands of its agent for immediate disbursement, and so not liable for the tax. We cannot regard the money in question as the money of the state in the hands of its agent. After it was deposited with the plaintiff, it was the money of the plaintiff, and no tax was put upon the plaintiff as respected its function as agent of the state. It might as well be said that a tax upon the business of the plaintiff would have been invalid because such business embraced transactions with the state. Even regarding the tax as a tax upon the plaintiff as a bank, it was not a tax upon it as agent of the state, but as a bank receiving deposits. The account of the state was not charged by the plaintiff with the amount of the tax, nor was that amount deducted from the deposits made by the treasurer of the state with the plaintiff. So the tax did not fall upon the state in any way.
The contention is, however, that if the tax was not on the function of the plaintiff as agent of the state, it was on the revenue of the state. It might as well be contended that a federal tax assessed on, and collected from, the money of a citizen of New York, who was in arrears to the state in respect of his taxes, was laid on the revenues of the state, and therefore illegal. The cases cited by the plaintiff in this connection, of McCulloch v. Maryland, 4 Wheat. 316; Weston v. City of Charleston, 2 Pet. 449; Dobbins v. Commissioners, 16 Pet. 435; Bank v. Fenno, 8 Wall. 533; Collector v. Day, 11 Wall. 113; U. S. v. Railroad Co., 17 Wall. 322; Bank of Commerce v. New York City, 2 Black, 620; National Bank v. U. S. 101 U.S. 1 ; and People v. Commissioners of Taxes, 90 N. Y. 63,-have no application to the case in hand. The plaintiff in [148 U.S. 412, 427] the present case was not required to withhold, and did not withhold, from the state anything that would otherwise be due to the state. Judgment affirmed.