The defendant was cashier of a national bank in the city of Muskegon. Taxes were assessed against, the several stockholders upon the stock of said bank, two-of whom failed to pay. Demand was then made upon the-defendant, who refused payment. The action is based upon section 33 of Act No. 195, Laws of 1889 (3 How. Stat. §• 1170(22), which provides:
“In case of any tax assessed upon the shares of the-capital stock of any bank, he [the treasurer] shall call upon the cashier of such bank, and demand payment thereof; and thereupon it shall be the duty of such cashier to pay the same, and charge the amount so paid against the shares of stock so taxed.”
Application was made to this Court for a mandamus to-compel the defendant to pay these taxes, but it was denied. See Eyke v. Lange, 90 Mich. 592. Subsequently this action was brought.
The validity of a state law making it the duty of a. national bank to pay the taxes assessed against its stockholders is supported by Lionberger v. Rouse, 9 Wall. 468; National Bank v. Com., Id. 353. Our statute does not in express terms do this, but it. is very clear that the money with which it is expected that the cashier will pay the-taxes is that of the bank, as he is authorized to “charge-the amount so paid against the shares of stock so taxed.”' The question here arises whether this is an attempt to-*21impose a personal or an official duty. If personal, we may reasonably say that he is expected to pay the taxes from his own means, and that he would have a right to recover •them from the stockholders. In such case he could enforce payment only by action, and his chances for collecting irom a non-resident stockholder would be no better than those of the tax collector. Again, the cashier may be unable to pay. On the other hand, a demand upon the cashier may well be treated as a demand upon the bank, and it is no hardship to say that upon such demand it is the ■duty of the bank to pay, — a duty which must be discharged by the bank, in its corporate capacity, through its proper officer, and one which it should not be allowed to avoid because the cashier has not been authorized to handle the funds or keep the books of the bank. We cannot say that the law will presume that the cashier may pay from the bank funds; for the national bank act, to which he must look for his authority, makes him the creature of the board of directors, who may appoint him and define his duties. National Bank Act, § 15. The bank has, what the cashier lacks, an account with the ■stockholder and the shares of stock, and it has property in its possession in which the stockholder has a pecuniary interest. Ordinarily, it is in á situation to reimburse itself from these sources, and in no such danger of loss as •the cashier would be. Who can doubt that the intent of the Legislature was that the payment required was to be made by the cashier from funds of the bank, and that it was to be charged against the shares of stock taxed, upon the books of the bank? If these things are true, why should we say that the obligation is personal, and that it is not official; that the law looks to the cashier, and not to the bank?
It appears, then, that the State may legally charge the bank with this duty. It is said in National Bank v. Com., *22supra, that this is the common practice in New England. It is the just and natural thing to do, in order to facilitate collection against non-resident stockholders. It would seem to be unnatural and unjust to make this obligation a charge merely upon a cashier, personally. I think, therefore, that the law in question made it the duty of the bank to pay upon demand made upon the cashier. This being so, if this duty is to be enforced by action at. law, it should be by action against the bank, and not by suit against the cashier.
Inasmuch as the bank is not a party to this record, I do not express an opinion as to whether or not an action at law against the bank would be a proper procedure to. collect a tax upon the stock. It is enough for the purpose of this case to say that, in my opinion, an action at. law will not lie against the cashier in the premises, and that the judgment should be affirmed.
My brethren think that a rehearing should be granted in the mandamus case of Eyke v. Lange. Ordered accordingly.
McGrath, C. J., and Long, J., concurred with Hooker, J.