The plaintiff in error brought the action. It averred that it was a bank organized under the United States banking law; that Chapman, the treasurer of Lorain county, reported to the county auditor as required by sec. 2765, Rev. Stat., and returned the amount of stock owned by each shareholder, and the •amount of “credits” and “debts” of each shareholder, and applied to the auditor and also to the annual board of equalization of banks to have the excess of “debts” over “credits” of each of a number of its stockholders named, deducted from his stock and only the difference, if any, assessed. This was refused. That the real estate of the bank was assessed separately; that much of the moneyed capital of Lorain county, under and by vitueofthe laws of Ohio, is assessed only on what remains after deducting debts therefrom, as the same is found belonging to individual citizens in the county and state; and the refusal likewise to deduct «debts from national bank stock is illegal and contrary to the provisions of sec. 5219, Rev. Stat., of the United States; that the county treasurer is about to proceed to sell said shares by virtue of the lien on the same as in sec. 2839. The plaintiff asks to have the county treasurer restrained from collecting beyond an amount admitted as due. The court of common pleas found all the facts as averred in the petition, but refused the plaintiff any relief.
This holding of the court below is claimed to be error. This is the only -question in this case. To determine this question it is necessary to examine the statutes of Ohio in so far as the same relate to the taxation of this kind of property, and also the statute of the United States relating to the same matter.
Section 2730, Rev. Stat., defines “Investments in stocks” to mean and include all moneys invested in the capital or stock of any association, corporation, joint stock company, or other company, the capital or stock of which is or may be divided into shares which are transferable by each owner without the consent «of the other partners or stockholders, for the taxation of which no special provision is made by law, held by persons residing in this state, either for themselves or others. This language is full enough to include national bank stocks.
The same section provides:
“The term money or moneys shall be held to mean and include any surplus or undivided profits held by societies for savings or banks having no capital stock, gold and silver coin, bank notes of solvent banks in actual possession, and every deposit which the person •owning, holding in trust, and having the beneficial interest therein, is entitled to withdraw in money on demand.” It also further provides: “The term ‘credits’ shall be held to mean •the excess of the sum of all legal claims and demands, whether for money or other valuable thing, or for labor or service due or to become due to the person liable to pay taxes thereon, including deposits in banks or with persons in or out of this state, other than such as are field to be money, as hereinbefore defined, when added together (estimating every such claim •or demand at its true value in money), over and above the sum of legal bona fide debts owing t>y such person.”
These provisions of the statute clearly indicate that the divisions of property into “stocks,” “money,” and “credits,’’etc., for the purposes of taxation, were made- for the purpose of applying different rules to the various classes in the mode and manner of taxing them. This being true, stocks cannot be classed as •credits, if the purpose of so doing is to deduct from the amount of stocks bona fide debts. It is clearly against the obvious intent of the statute to allow such ■deduction to be made. There is no provision for it in the statutes of Ohio. Niles v. Shaw, 50 O. S., 370. It is not contended, however, that the relief sought in this action can be had under the statute of the state unaided by the provision of the United States statute, sec. 5219. This section, after conferring on the states the power to tax shares of national bank stock, places upon that power two restrictions. The first is: “That state taxation on the shares of any national banking association shall, not be at a greater rate than is assessed on other moneyed capital in the hands' of individual citizens of the state.”
*254It is the rule, that so far as the United States Supreme Court has construed this statute, the state court should follow that construction. By the phrase “ moneyed capital,” in section 5219, is included shares of stock or other interests owned by individuals in all enterprises in which the capital employed in carrying on its business is money; where the object of the business is the making of profit by its use of money. Bank v. New York, 121 U. S., 138. It includes money at interest, shares in a national or other bank’ or trust company. Hepburn v. School Directors, 23 Wall., 480. In the case of Britton v. Bank, 105 U. S., 322, this phrase was held to include the rights, credits, demands and money at interest mentioned in the Indiana statute, from which bona fide debts may be deducted; all mean moneyed capital invested in that way. This construction includes within this phrase much of what is included under the term ‘ ‘credits, ’ ’ as used in sec. 2730, Ohio Stat. This restriction has reference to the entire process of assessment, and includes the valuation of the shares as well as the rate of percentage charged thereon. People v. Weaver, 100 U. S., 539.
Hence the two statutes cannot be harmonized by construing the phrase “greater rate” to refer to only the rate of percentage and not to the amount at which such shares are taxed, for the last case makes it include both. The object of the United States statute is not to curtail the power of the state to tax, but to prevent unfriendly or discriminating taxation. Adams v. Nashville, 95 U. S., 19.
It is certain that congress knew, when it passed this law, that many of the states, by their laws, allowed debts to be deducted from “credits” included within the phrase “moneyed capital,” and did not include stocks within credits, and in other states debts could be deducted from amount of personal property exclusive of bank stocks and certain other stocks. It would from this seem to follow that congress intended that national bank stocks should in some states, such as Ohio and others, be taxed as credits, and in other states it should not be exempted from the general rule of deducting debts from personal property.
The United States Supreme Court has may times held that the only power that a state has to tax national bank stock is derived from the act of congress granting such power — sec. 5219. People v. Weaver, 100 U. S., 539, and the cases there cited. Many of the states have held the same way, while some few states hold that the state possesses the power independent of the act of congress. As the Supreme Court of Ohio has never decided this question, so far as I know, we follow the holding of the United States Supreme Court.
If then, the United States statute creates the power in the state and at the same time prescribes a mode in which the power shall not be exercised, it is clear that1 the donee of the power cannot legally exercise the power in such prohibited mode. 3 National Bank Cases, 564. The power being donated to the state and the legality of the mode of assessment being determined by the fact whether the owner of the stock has or has not debts such as he may deduct from credits, it follows that the tax in this case is not void but only voidable. Hills v. Bank, 105 U. S., 319; Supervisors v. Stanley, 105 U. S., 305; Boyer v. Boyer, 113 U.S., 689.
The Supreme Court of the United States has held that Ohio must permit the owner of national bank stock to deduct from the same his debts, notwithstanding the state statute, at least constructively, prohibits that being done. Whitbeck, Tr., v. Bank, 127 U. S., 193. Like holdings have been made with reference io similar statutes of other states. Hills v. Bank; Supervisors v. Stanley, Boyer v. Boyer, already cited; Wasson v. Bank, 107 Ind., 206.
Counsel for the county treasurer insists in his argument that the Supreme Court of Ohio has held otherwise, and cites us to the case of Niles v. Shaw, 50 O. S., 370, as bearing him out in so contending. We have not seen the record in this case, and hence must rely on the case as reported to determine what it decides. The syllabus is: “Our tax laws do not authorize the deduction from the value of shares in a national bánk, entered on the duplicate for taxation, of legal bona fide debts owing by the holder of such shares of stock.” This is cer*255tainly so. There is no such provision of .Ohio law. Then the petition, as it is referred to in the statement of the case, says in substance, the plaintiff has a right to deduct his debts from his national bank stock by reason of the provisions of the laws of Ohio.
Boynton & Horr, for plaintiffs in error. E. G. Johnson, for defendant in error.The opinion says that by 2780.and 2731, Ohio Statutes, national bank stocks are to be classed as stocks, and not as credits, and hence bona fide debts cannot be deducted from them. This case then decides only that national bank stocks must, under Ohio law, be classed as “stocks” and not as “credits;” this being true, they cannot, under Ohio Statutes, be taxed as ‘ ‘credits. ’ ’ This is not the question we have been called upon to decide. The question before us is, can the state tax national bank stock in excess of other moneyed capital of individual citizens of the state?
The tax when levied is only voidable, and if a party seeks to avoid the tax in whole or in part because his stock should have been classed as “credits”' instead of as “stocks” — under the Ohio law — and the court determines this not to be a good ground on which the tax can be avoided, the court is not justified in going outside of the petition to find a ground on which the tax can be avoided. Hence we can’t see how the question before us could possibly have been before the court in the case of Niles v. Shaw, Tr. In Wilber v. Bank, 46 O. S., 424, the Supreme Court decided that the proper method of listing national bank stock is not to list in the aggregate in the name of the bank, but in the name of the respective owners of the shares. Minshall, C. J., in his opinion in the case, says:
“Unless the shares are assessed for taxation in the names of the shareholders, there would be no opportunity given by a shareholder to have a deduction in his favor for any bona fide indebtedness on his part, and to which he would be entitled under the decisions in Whitbeck v. Bank, 127 U. S., 193, 199; Hills v. Bank, 105 U. S., 319; Supervisors v. Stanley, Id., 305.”
The judgment of the court of common pleas is reversed, and we render judgment for the plaintiff in error upon the findings of facts in the journal entry as. prayed for in its petition.