The opinion of the court was delivered by
Spencer, J.The city of New Orleans sued the defendant Canal Bank, for a tax of one and one half per cent on its capital not invested in real estate. The value of such capital is assessed at the sum of $700,000, making the amount of tax $10,500. There was judgment final on default in favor of the city and the bank appeals. The case comes up on a statement of facts, of which the following are those material to the issue :
*852“ 5th. It is admitted that the proper printed forms to be filled up with, item's of taxable property were duly served by the assessor upon the president of the defendant bank, and that he returned it filled and signed" and that it showed no taxable capital.”
“ 6th. That the capital of the defendant paid up is $1,000,000, of which $200,000 is invested in real estate and taxed as such, and that it held from first February to first July 1875 the amounts of “greenbacks” and national currency indicated by Exhibit ‘Z’.hereto annexed.”
The Exhibit “Z” shows the amount of greenbacks and national currency respectively held by the bank for each day from first February to-first July — the dates between which the law requires the assessment to be made. The amounts fluctuate in “ greenback ” between $1,535,000 and $762,000, and in national currency from about $400,000 to $85,000. There-was on hand June 30 $762,000 in “greenbacks” and $158,000 in national currency — making total $920,000.
It is conceded by both parties that whatever part of the capital of the-bank, was invested in United States, stocks, bonds and currency, is by jhe laws of the United States exempt from taxation.
The defendant on whom lay the burden has offered no proof that any part of the capital of said bank was so invested. The admission in the-statement of facts is that over and above the amount $200,000, invested in real estate, the bank had a paid up capital of $800,000 “ and that it held from first February to first July 1875, the amounts of greenbacks and national currency indicated by Exhibit “ ‘ Z.’ ”
It is not shown that the currency thus “ held ” was its capital, or any part thereof. The Exhibit shows that at several periods between first February and first July, it “held” as much as $1,750,000 of currency of both kinds. There must have been at these times $950,000 of deposits,, as the bank only had $800,000 of capital uninvested in real estate. Are we to presume that the bank had loaned its “ deposits,” and kept its “ capital,” when on thirtieth June it only held $920,000 of currency? The counsel for defendant assume that such was the fact, but there is no proof of it, and we think the fairer presumption would be that it loaned or used its “capital” and kept its “deposits.” Nor does the fact that the president in his return reported no taxable capital materially affect the case, because it is fully offset by the fact that the assessor, (who under the law is empowered as a public officer to decide primarily) reported the bank as having $700,000 of taxable capital. The presumption is that his report is true until disproved. "We find no sufficient proof of the error to justify us in reversing the judgment of the court a qua. If the bank’s capital was invested in United States bonds or currency and thereby exempt, the fact of such investment should have been affirmatively proved and not left to inference and doubt. "Where one claims the *853benefit of an exemption, or that he is within an exception, it is his duty and the onus is on him, to make the facts appear clearly and distinctly upon which he rests his claim.
It is therefore ordered adjudged and decreed that the judgment appealed from be affirmed with costs of both courts.