dissenting:—
Not being able to concur in the opinion of my brethren, and deeming the question to be an important one, I have thought it proper to state the reasons which have led me to the views which I entertain.
The first inquiry is, whether, by the general law independent of any act of exemption, express or implied, savings banks are liable to be taxed for their property. And if so, whether there is any act which .exempts them from taxation for either real or personal estate.
Upon the first question I understand the opinion of the majority of the court to be in effect, that the general law subjecting the owners of property to be taxed for it does not apply to savings banks, because the terms are not broad enough to embrace them. If this be so, it must be for reasons that would exclude from taxation all banks, and all other corporations, unless specially named; and this is a doctrine, I think, which is not only repugnant to thé policy of our revenue laws, and the settled usage under them, but to the construction, both judicial and otherwise, which has been given here and elsewhere, to the terms used in those laws.
By the law in force when the taxes in question were assessed, Rev. St. ch. 40, sec. I, it is provided that "every person shall be taxed in the town in which he is an inhabitant or resident on the first day of April, for his poll and estate,” &c.
To the same cffeet was the law of 1812, providing that "all personal estate, and all buildings and real estate, shall be taxed to the person claiming the same, or to the person who is in possession and actual octhereof,” and see. 7, ch. 40 Rev. St., is the same.
’^Bquestion is, then, whether the term person in the Revised Statutes includes banking and other corporations. On this point it is ex*401pressly provided, in ch. 1, sec. 8 of the same Revised Statutes, that "the word person may extend and be applied to bodies politic and corporate, as well as to individuals.
Here, then, is an express authority for including corporations in the term persons. There may be cases where the term, taken in connection with other parts of the provision and the object of the law, should not be construed to embrace corporations, — as, for example, laws relating to marriage and divorce, and the like, — and hence, I presume the peculiar phraseology of this section of the Construction Act; but here no such objection can arise, for it is obviously the policy of our laws that all owners of taxable property should be taxed for it; and there is nothing I think to be found in our legislation that indicates any purpose to exempt corporations from their share of the public taxes; and this, I conceive, is one of those cases where the construction I contend for is eminently proper and just.
Besides it is clear from sec. 5 of the same ch. 40 of the Rev. St., that the Legislature understood that the term persons in the first section did include corporations, for it is enacted that "taxable property of manufacturing corporations in this State, and property taxable to any other corporation, shall be taxed to such corporation by its corporate name, in the town or place in which it is situate, except in cases where other provision is made,” thus makiug provision for the mode of assessing corporations under the general law.
Again, this construction accords with the long continued practice under this and former laws ; the revised statute being substantially the same as the law of 1812. It is admitted, indeed, in the opinion of the majority, that, in respect to real estate, savings banks and other corporations are properly taxable under the general law, and this is put upon the ground mainly, or altogether, of usage. That such has been the usage there can be no doubt, and I think it clear also, that it has been the usage to tax other property to such corporations unless otherwise specially provided.
If then, it has been long the usage to tax corporations for real estate, it must have been because it was understood that the term persons embraced corporations ; and so we have a practical construction of this act. If therefore corporations are included in the term persons so as to be. rightfully taxed for real estate, I am unable to conceive any good ground for holding that the law should be otherwise construed in respect to "personal estate.
Independent of our Construction Act, I think the term persons must include corporations. Under the laws of the United States, giving jurisdiction to the circuit courts in controversies between citizens of different States, corporations are, by express decisions of the highest judicial tribunals, included in the term citizens : or rather it is conclusively presumed that the persons incorporated are all citizens of the State incorporating them. Marshall v. Baltimore & Ohio Railroad, 16 Howard U. S. Rep. 325.
The provision of our law that the person-shall be taxed in the^^p in which .he is an inhabitant or resident, is much like the United SnRs *402law referred to, and should receive a similar construction ; and as it is in the Revised Statutes provided that a corporation shall be taxed in the town or place in which it is situate, there can be no difficulty in applying it.
In Massachusetts, under a similar law providing that "all taxes on real estate shall be assessed in the town where the estate lies, to the person who shall be either the owner or in possession thereof on the first day of May, (Mass. Rev. Stat. ch. 7, sec. 7.) it is held that a bank is liable to be taxed for its real estate in the town where it lies.” Tremont Bank v. Boston, 1 Cush. Rep. 142; so, in respect to other corporations; Salem Iron Factory Co. v. Danvers, 10 Mass. 514; Goodell Man. Co. v. Trask, 11 Pick. 514; and under a provision of the Massachusetts law that all personal estate shall be taxed to the owner in the city or town where he is an inhabitant, Rev. Stat. ch. 7, sec. 12, Gen. Stat. ch. 11, it is assumed in Worcester County Savings Institutions. Worcester, 10 Cush. 128, that the law subjecting money at interest to taxation applied to savings banks; although in that case the bank was held not liable because it had no money at interest more thaii it paid interest for.
These cases show that terms in the Massachusetts laws, similar to our own, have received in their courts the construction for which I contend ; that is, to include corporations. Indeed I can find no adjudged case against this construction, nor has any been referred to. It is true, cases may be found holding that corporations are not liable to assessment in certain cases, upon the ground of double taxation, or some implied exemption, or other special cause, but never, so far as I can learn, upon the ground that they were not included in the term persons.
I am constrained, therefore, to hold that, under the general law, savings banks and other corporations are liable to be taxed for their real and personal estate, the same as natural persons, unless exempted or excused by some special provision; holding indeed, that such artificial persons, are included in the terms used as much as if the term corporations had been added. This I think is in accordance with our policy to tax all owners of taxable property, and also in accordance with the practical construction given to the law, and with the adjudged cases so far as any can be found.
Assuming, then, that savings banks are subject to be be taxed like natural persons under the general law, the inquiry arises whether there is any act which expressly, or by implication, exempts them from the° taxes in question.
These taxes are assessed upon real estate and stock in the Pennichuck Waterworks, the property of the bank, and both kinds expressly made liable to be assessed, and as I understand it, the liability of the bank to be assessed for this property stands under the general law, precisely upon the same footing as in the case of natural persons — but it is urged by the counsel for the bank that the law providing for taxing the depa^tors when the amount is three hundred dollars and upwards, relieves tfÉÉÍjhmk from all taxation for either the real or personal estate, upon tlrarground that the whole interest in the bank is in the depositors; and *403that the taxation of the deposits is a taxation of the entire property of the bank; and therefore, that a taxation of the bank would be a double taxation, and illegal; and further, that an exemption of depositors, whose deposits are less in amount than three hundred dollars, is in effect an exemption of the bank to that extent.
This argument, I conceive, applies with equal and even greater force to banks of issue and all other corporations where the stock is held in shares, inasmuch as the position of depositors in savings banks has much less the character of ownership than that of stockholders in other corporations. In this point of view, the question becomes of grave importance, because, if the argument be sound, no corporation whose stock is taxable to the shareholders could legally be assessed for any property held by it, whether real or personal, at least such must be the logical result.
An illustration of the effect of such a doctrine may be found in the case of banks of issue, which by our law are required to pay one half of one, per cent, upon their capital stock to constitute a literary fund, and this amount was nearly equal to the average tax upon other property when the law was made, (see Rev. Stat. ch. 75, sec. 1,) and yet stock in such banks was also subject to taxation in common with other property; Rev. Stat. ch. 39, sec. 3; and besides the real estate, and I think the visible personal property, of such banks have also been taxed to them; but if the doctrine adverted to be sound, these taxes, except those upon stockholders, must be regarded as double, and therefore illegal ; and I cannot but fear that in many other respects this doctrine would be found seriously to trench upon the policy of our revenue laws.
It is very clear that our laws contemplated the taxation of corporations. This is manifested by the provisions of sec. 5, ch. 40, of the Revised Statutes, already quoted, determining where they should be taxed, and it applies not only to manufacturing and railroad corporations, but to other corporations for which no special provisions for taxing are made, notwithstanding their stock is held in shares, and subject to taxation ; and yet if the doctrine in question is sound, the corporations, except such as are specially provided for, cannot be taxed at all.
Again, in the United States courts it is distinctly held that for the purpose of taxation, a bank, and the stockholders of a bank, are not one and the same, and therefore that one may be taxed or exempted from taxation, and yet the other be legally assessed. This doctrine was held in the case of the First National Bank of Albany v. The Assessors of Albany, decided in the Supreme Court of the United States, in May, 1866, where the capital, or a portion of it, was in United States bonds not liable to be taxed, and yet although the bank itself could not be taxed for the portion of the capital so held, it was decided that the stockholders were liable to be assessed to an amount not greater than is assessed on other moneyed capital in the State, nor to exceed the rate on shares of stock of State banks; and also that the amount is not subject to deduction on account of the portion of capital invested in government bonds.
This decision was put upon two grounds : First, that if it be admitted *404that this was a tax upon the bonds or capital stock of the bank, it is still but a tax upon the new uses and new privileges conferred by the charter in the application of these bonds to the business of banking; and secondly, that "the .tax on the shares is not a.tax on the capital of the bank;” the court saying that "the corporation is the legal owner of all the property of the bank, real and personal; and within the powers conferred upon it by the charter, and for the purposes for which it was created, can deal with the corporate property as absolutely as a private individual can deal with his own.” And the court say that "this is familiar law and will be found in every work that may be opened on the subject of corporationsand, as a stinking exemplification of the doctrine, the case of the Queen v. Arnoud, 9 Adolph. & Ellis, N. S. 806, is cited. That case related to the registry of a ship owned by a corporation, and it was held per Lord Denman, that the stockholders were in no sense the owners of the ship, though they might derive a benefit from it; but that the corporation was the sole owner, and that the ship was entitled to registration although some of the stockholders were foreigners.
The doctrine of the First National Bank of Albany v. The Albany Assessors, is fully recognized in Ohio, in Parker & al. v Liebern & al., the auditor and treasurer of Hamilton county, and Frazier & al. v. Liebern & al., Am. Law Reg. July, 1866, p. 526; and these decisions were followed in our own State in First National Bank v. Portsmouth, Rockingham county, June, 1866.
The same general doctrine is maintained in the great case of McCulloch v. The State of Maryland, 4 Wheat. 316, where it was held that the State of Maryland could not constitutionally impose a tax upon the operations of a branch of the Bank of the United States. In giving the opinion of the court Marshall, C. J., says: "This opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real'property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution in common with other property of the same description throughout the State. But this is a tax on the operations of the bank, and is, consequently, a tax on the operations of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional.”
It is quite evident that the court here intend to announce the opinion that the State may rightfully tax stock in the Bank of the United States, and, of course, it must be upon the ground that a tax on the stockholders is not a tax on the bank itself. In Wilson v. The City of Charlestown, 2 Peters U. S. Rep. 449, 469, which confirms the case of McCulloch v. The State of Maryland, it is evidently understood by the court as having been settled in that case, that such stockholders may be taxed by a State.
These cases show, I think, very clearly, that a tax upon the share-, holders in a bank of circulation is not a tax upon the bank itself, or its capital, and that ’ the exemption of one does not exempt the other. If *405the doctrine of the majority of the court in the case before us is established, viz., that a tax upon the depositors in a savings bank is equivalent to a tax upon the bank itself, or that if the depositors are exempted from taxation, then the bank must also be exempted, it follows legitimately that if the bank itself is by law exempt, the depositors must be also, because by that doctrine they are substantially identical.
We have seen, however, that this view is distinctly rejected in the case cited in the United States court, and followed in Ohio, and also in our own State. This decision applies to a bank of circulation, and it may be useful to consider for a moment, whether there is any difference between such banks and savings banks, that can affect the question.
As to banks of issue having a capital divided into shares, the entire beneficial interest is in the stockholders, and upon the winding up of their affairs all the assets, after paying their liabilities and expenses, are divided among the shares into which the capital was divided. It is not so, however, with savings banks, for the deposits are made to suit the convenience of the depositors who acquire no permanent interest in the assets, but are entitled to withdraw their deposits at any time, with such interest as the bank stipulates to pay; and when that is paid, the depositor has no further claim upon the bank. It is, indeed, much the same as deposits with a bank of circulation, which by law they may receive upon such terms as they may see fit to make; or a deposit -with an individual. In these cases the depositor has an interest that the individual or bank has assets sufficient to”pay, but he has no further interest in those assets, and so it is with a savings bank.
It is true in respect to savings banks that the money deposited is to be managed to the best advantage for the benefit of the depositors, and the net income paid and distributed among them in just proportions, agreeably to such reasonable rules and by-laws as may be established by such banks; and the deposits may be withdrawn at such reasonable times and manner as the bank by its by-laws may appoint, or according to such lawful conditions and limitations as the depositors, agreeably to the regulations of the bank, may have prescribed and annexed to their deposits.
Under these provisions rules are prescribed which entitle the depositor to a certain fixed rate of interest if they remain a certain length of time, otherwise no interest is paid. If they remain a longer time, in some cases five years, and until the return of fixed periods, they will be entitled to a share of the accumulated earnings beyond the stipulated interest of four or five per Cent, as the case may be;-thus, in fact, making the terms of deposit a matter of contract between the bank and the depositor which may be enforced by the depositor by suit against the bank, the same as against an individual, or a bank of issue where deposits have been made.
So far,, then, as the savings banks differ from national and other banks of issue, in respect to which the United States courts hold that taxing the stockholders is not taxing the bank, it is apparent from this review that the doctrine of those courts applies with much more force to savings banks; and I am clearly of the opinion that these corpora*406tions, and not the depositors, must, for the purposes of taxation, be regarded as the owners of both the real and personal property acquired by them.
By the deposit of money the depositor acquires no title or interest in the assets of the bank beyond what every creditor has in the assets of the debtor upon which his security depends ; and in a suit brought by him to enforce the contract, the bank, I think, cannot plead that .it has no assets, but must submit to a judgment which the depositor may enforce by levy of execution, or process of foreign attachment upon all the real and personal property of the bank, including debts due to it, and stocks in other corporations.
Indeed, the claim of the depositor has all the characteristics of money at interest, as much as if the deposit was with the individual, or in a bank of issue. It is true that provision is made for placing an injunction upon an insolvent savings bank, and winding it up, and making a pro rats, distribution of its assets among the depositors, — and so it is with other banks, — but yet so long as no such proceeding is instituted by the bank commissioners, savings banks are liable on their contracts with depositors like other banks and individuals, to the extent of their means.
Again, savings banks are empowered to hold real estate for the con-venient management of their affairs, and also such as may be conveyed to them in good faith for the payment of debts; so they may doubtless reserve and hold a reasonable part of the profits or income of the deposits, to meet the contingencies that are liable to happen in such business, and may, of course, apply a portion of such profits to the purchase of the necessary offices or other real estate needed for the business. In respect to such property and all other, savings banks must be regarded as the owners, and especially must it be so for the purpose of taxation, it being clearly the policy of our laws to tax the property to the apparent owner having it in possession, without being embarrassed by any nice question of title.
Upon these views I am of the opinion that the taxation or exemption of depositors does not affect the liability of the bank. There might be cases where the provisions of the law imposing a tax-upon all the property of a corporation might be such as to afford a fair implication that no tax upon the stockholders was intended, but I think no such inference can be made here.
I am aware that there are decisions in this State which- hold a somewhat different doctrine in respect to a distinction between a corporation and its stockholders; they are Smith v. Burley, 9 N. H. 427, and Smith v. The Town of Exeter, 37 N. H. 566; but to them I answer first, that the doctrine of those cases must be regarded as modified and limited by the recent decision in First National Bank v. Portsmouth, following the decision in the Supreme Court of the United States before cited; and, secondly, that they applied only to corporations where the capital is owned in shares, and could not extend to savings banks, and after the recent decisions referred to would not be extended.
The law is explicit that all real estate and stocks in corporations shall be taxed to the owner; and it is equally explicit in respect to stocks as *407in respect to real estate; and corporations, under the general law, stand upon the same footing as other owners of property, and, for aught I can' see, the liability of corporations to be taxed for real estate and stocks is as clear as if they had been specially named.
What, then, is there to relieve savings banks from being taxed for this property ? As to the real estate it is admitted by my brethren that the bank is rightfully taxed. If so, why is not the stock also taxable? Both are made subject to be taxed by the same law and in the same terms. The provision which includes corporations applies as much to stocks as to real estate; and so if there was taxation of the whole property in another form, that is, by taxation of the depositors, or an exemption in favor of the depositors, it applies equally to both real estate and stocks, for no distinction is made, or sought to be made, between them.
As I understand it, the exemption is sought to be implied from the law of July, 1861, requiring the treasurers of savings banks to give .notice to assessors of the several towns of all deposits of three hundred dollars and upwards ; from which it is inferred that smaller deposits are to be exempt from taxation; and it is therefore urged that as provision is made for all the deposits by taxing part to the depositors, and exempting the remainder, there is an implied exemption of the bank on the ground that the provisions in respect to the depositors cover the whole property. If this were so, real estate should for the same reason be exempt, inasmuch as it is obtained by the same means as the stocks. Upon the grounds already stated, however, I think neither is exempt, nor do I think there was any purpose manifested in the act requiring notice to be given of deposits, to affect the liability of the savings banks to taxation in any way whatever. Originally savings banks were taxed for the real estate and visible personal property to which they held the legal title; and they were also taxable for money at interest more than they paid interest for.
On the other hand depositors were taxable for their deposits unless they paid interest upon an equal amount, or at least were liable to do so, although it is more than probable that a large portion escaped altogether. This is shown, indeed, by the law of 1853, ch. 1419, which provided that if any person with intent to avoid taxation shall deposit money in any savings bank under a false name or false residence he shall be subject to pay taxes on three times, the amount of money so deposited for the use of the town in which he resides.
The law requiring these returns of deposits was, as in the case of other banks, designed chiefly to aid the assessors in reaching them, and I can see no evidence of any purpose to interfere with the taxation of the real estate and other visible property to the bank. The policy of the law always had been, and still is, to tax the visible property wherever it was found. It is admitted that it was the usage to tax the real estate to the bank, and the same law applied equally to other visible property. If the legislature had intended so great a departure from the settled policy as to relieve such property from taxation in this case, that intention would, I think, have been expressed explicitly, and the con*408tinued taxation of the real estate, and, as I believe of personal estate, tends to confirm the view I have taken; and so, also, the taxation of the real estate to such, banks before any law exempting depositors, and when they were liable to be taxed for the full amount, tends strongly to conr firm the view which I have taken.
In respect to the suggestion that there would be double taxation if this view is taken, it is to be considered that there is little reason to suppose that there would be anything like a single tax on all the property, even if the bank and the depositors were regarded as the same; inasmuch as the amount of individual deposits in most instances would not exceed the sum exempted; and, by the rules of some of the banks, as the Portsmouth Savings Bank for instance, they could not exceed it. In feet, in the case before us, there is no evidence that any deposit exceeds the sum of three hundred dollars. Under these circumstances, therefore, the legislature might well conclude that, with a tax upon all the visible property to the bank, and upon all sums of three hundred dollars and over to. the depositors, much of the property would still be exempt.
As before remarked, the policy of our law has been to tax all real estate and the enumerated personal property, which includes most of that which is visible, to the apparent owner, and in respect to all but money at interest, no deduction is made because of debts owing by such owner, the purpose evidently being to subject all the visible and tangible property in the State to taxation -without regard to the condition of the owner, and with as little embarrassment as possible from questions of title. In all countries one of the greatest obstacles in the way of a fair and equal execution of the revenue laws, arises from the habit of concealing property, which is not visible, from the assessor; and therefore it is that the chief reliance is placed upon that species of property which is visible and tangible, and in that class must be included stocks in corporations.
To justify the omission to tax such property the intention of the legislature ought to be pretty clearly manifested. In the case of individuals it is no excuse that his property, whether real or personal, is mortgaged to secure the price, and that the mortgage debt is taxed. It has never been the law, although often urged upon the ground of double taxation; and it is now settled by express legislation that such property is liable as well as the mortgage debt. So it must be in respect to corporations, and so it must be here, even although the savings bank might owe a depositor for the money used to buy this stock and real estate, that makes no difference with either individuals or corporations. The bank here has the legal and equitable title to this stock. It stands in its name. Under the general law it is, I think, liable to be taxed'to the corporation as clearly as farming stock is to the farmer who owns it. It is clearly the policy of the law to tax it to the party in whose name the stocks stand, and courts, I think, should be slow to infer such a change as is proposed, from doubtful provisions.
It has been said that the policy of our law is to tax personal estate in the town where the owner lives, and that this makes a distinction be*409tween the real estate and the stock in the Pennichuck Water Works. But I think there is no policy of such character as to have any weight upon the decision of this question. As to corporate property it is sometimes taxed in shares mainly, and in the towns where the shares are held, but in the case of manufacturing corporations, the capital of which is far greater than all others, the whole property, including real estate, manufacturing and other personal property, is by law of 1825, to be taxed in the towns where they are located; and this was done after much discussion of the principle. See Smith v. Burley, 9 N. H. 423. This principle has also been extended to all stock in trade, all animals all wood, barb, timber, logs and lumber manufactured or otherwise, and all fishing vessels connected with any trade or business at any port or harbor.
These provisions are evidently designed to insure the taxation of property which might otherwise escape. Neither are railroads taxed to the stockholders, although a part of the tax, when collected, is distributed among the towns where the shareholders live. This review shows that as to corporations there is no general policy to tax corporate property in the towns where the stockholders reside.
Upon these views I am reluctantly compelled to dissent from my brethren in their opinion that the tax upon the stock in the Pennichuck Water Works was illegal.