American Bank & Trust Co. v. Dallas County

Justice Rehnquist,

with whom Justice Stevens joins, dissenting.

I agree with the Court that the plain language of the tax exemption for federal obligations, Rev. Stat. § 3701, as *874amended, 31 U. S. C. §742, seems quite broad. Ante, at 862. See Memphis Bank & Trust Co. v. Garner, 459 U. S. 392 (1983). If this general provision is viewed in isolation, then the Court’s argument is persuasive that it proscribes the Texas property tax on bank shares at issue in these cases because that tax is computed without any reduction for federal obligations held by state and national banks. Ante, at 862-865. I do not believe, however, that we can take such a detached look at §3701 when this Court has for over 100 years consistently said that a different statute, Rev. Stat. §5219, as amended, 12 U. S. C. §548, specifically controls the question presented here. Since today the Court disregards these precedents, I dissent.

An entire chapter of American legal history is occupied by efforts to establish different versions of what may be loosely referred to as “national banks.” This chapter is of course reflected in the decisions of this Court, where in a series of early cases the Court consistently determined that it was Congress’ intention to protect the National Bank from taxation by the States. See McCulloch v. Maryland, 4 Wheat. 316 (1819); Osborn v. Bank of United States, 9 Wheat. 738 (1824). Somewhat later the Court decided that States could not tax United States securities when those securities were owned by state banks. New York ex rel. Bank of Commerce v. Commissioners of Taxes of New York City, 2 Black 620 (1863); Bank Tax Case, 2 Wall. 200 (1865).

In Van Allen v. Assessors, 3 Wall. 573, 582 (1866), the Court was asked to decide “whether the State possesses the power to authorize the taxation of the shares of these national banks in the hands of stockholders, whose capital is wholly vested in stock and bonds of the United States?” It was argued that the predecessor of §3701 ensured an exemption to such a tax by providing that “all stocks, bonds, and other securities of the United States held by individuals, corporations, or associations, within the United States, shall be exempt from taxation by or under State authority.” *875Act of Feb. 25, 1862, ch. 33, §2, 12 Stat. 346. 3 Wall., at 578.

While the Court did not address this argument in so many words, it implicitly rejected the contention by turning instead to the forerunner of §5219, a more specific statute which provided that nothing in the National Bank Act “shall be construed to prevent all the shares in any of the said associations, held by any person or body corporate, from being included in the valuation of the personal property of such person or corporation in the assessment of taxes imposed by or under State authority. . . .” Act of June 3, 1864, ch. 106, §41, 13 Stat. 112. The Court held that this provision recognizes “in express terms, the sovereign right of the State to tax” bank shares without a reduction for United States obligations. 3 Wall., at 586. “Nothing, it would seem, could be made plainer, or more direct and comprehensive on the subject. The language of the several provisions is so explicit and positive as scarcely to call for judicial construction.” Ibid. See also National Bank v. Commonwealth, 9 Wall. 353, 359 (1869).

In 1878 Congress revised the statutes and enacted § 3701 and § 5219. Section 5219 was virtually identical to its immediate predecessor. The language of the exemption in § 3701 was somewhat changed to provide: “All stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local atuhority.” In Cleveland Trust Co. v. Lander, 184 U. S. Ill (1902), an Ohio trust company, relying on § 3701, made an argument similar to the one made in Van Allen. The Court reaffirmed its Van Allen decision and this time expressly rejected the § 3701 claim of exemption. The Court explained:

“The argument of the plaintiff in error claims a greater immunity from taxation for the shares of the Trust Company than section 5219 of the Revised Statutes of the United States gives to shares in national banks. That *876section permits the States to assess and tax the shares of shareholders in national banks. ... In Van Allen v. The Assessors, 3 Wall. 573, the provision contained in section 5219 — then a part of the act of Congress of June 3, 1864 — came up for consideration. . . . The validity of the statute was sustained, and interpreting it the court said that it authorized the taxation of such shares, and shares were defined to be the whole interest of the holder without diminution on account of the kind of property which constituted the capital stock of the bank. Of the provisions of the act expressing this purpose and the right of the State to tax the court said nothing ‘could be made plainer or more direct and comprehensive.’ . . . The answer to the contention [that § 3701 requires a different result] is obvious and may be brief. The contention destroys the separate individuality recognized, as we have seen, by this court, of the trust company and its shareholders, and seeks to nullify one provision of the Revised Statutes of the United States (section 5219) by another (section 3701), between which there is no want of harmony.” 184 U. S., at 113-115.

Thus, after Van Allen and Cleveland Trust Co. it was clear that, irrespective of § 3701, § 5219 authorized States to tax bank shares without excluding the value of the bank’s capital vested in federal obligations. By 1923 the Court said that this principle “is now settled law in this court.” Des Moines National Bank v. Fairweather, 263 U. S. 103, 114 (1923). And in Society for Savings v. Bowers, 349 U. S. 143, 148 (1955), Justice Harlan, writing for the Court, explained that “this exception to the general rule of immunity is firmly embedded in the law.”*

*877As the Court points out, in 1959 Congress amended § 3701 with broad language. Ante, at 858-859, and n. 1. But the Van Allen decision rested exclusively on § 5219 and permits a tax on bank shares regardless of § 3701 unless there is some indication that with the 1959 amendment to § 3701 Congress intended to repeal part of § 5219. Sensible meaning can be given to the amended § 3701 without finding a repeal by implication, and there is nothing in the language or history of the amendment to indicate a repeal by implication. In fact, the history of the amendment indicates that Congress did not intend to change the exemption; Congress amended § 3701 to make clear that an Idaho tax on interest earned on federal obligations ran afoul of the exemption. See S. Rep. No. 909, 86th Cong., 1st Sess. (1959); H. R. Rep. No. 1148,86th Cong., 1st Sess. (1959).

*878The Court does not contend otherwise, recognizing that “‘repeals by implication are not favored.’” Ante, at 868 (quoting Posadas v. National City Bank, 296 U. S. 497, 503 (1936)). The Court says, however, that the “doctrine disfavoring implied repeals ... is irrelevant for these cases,” ante, at 873, because “at the time the taxes at issue were assessed, § 5219 was clearly capable of coexistence with the plain language of § 3701 as amended in 1959, and there is no justification for construing § 5219 to create an inconsistency,” ante, at 868. Ten years after §3701 was amended, §5219 also was amended. The latter section now provides: “For the purposes of any tax law enacted under authority of the United States or any State, a national bank shall be treated as a bank organized and existing under the laws of the State or other jurisdiction within which its principal office is located.”

Contrary to the Court’s suggestion otherwise, the legislative history of the 1969 amendment indicates that the new provision in §5219 was intended to extend the power of States to tax national banks; not to limit their power to tax bank shares. See 115 Cong. Rec. 38634 (1969) (remarks of Sen. Tower); id., at 35399 (remarks of Sen. Proxmire). As the Senate Report clearly provided, the “broad statement of the law” now found in § 5219 is intended to express Congress’ conclusion that “there is no longer any justification for Congress continuing to grant national banks immunities from State taxation which are not afforded State banks.” S. Rep. No. 91-530, p. 2 (1969).

As noted above, the construction given to §5219 in Van Allen and its progeny is now “firmly embedded in the law.” Society for Savings v. Bowers, supra, at 148. We are not therefore, as the Court seems to believe, writing on a clean slate. As the Court said in Ozawa v. United States, 260 U. S. 178, 194 (1922):

“We are asked to conclude that Congress, without the consideration or recommendation of any committee, without a suggestion as to the effect, or a word of debate *879as to the desirability, of so fundamental a change, . . . has radically modified a statute always theretofore maintained and considered as of great importance. It is inconceivable that a rule , a part of our history as well as our law, welded into the structure of our national policy by a century of legislative and administrative acts and judicial decisions, would have been deprived of its force in such dubious and casual fashion.”

Since the Court can point to nothing in the amendment to § 5219 which indicates that Congress intended to change the Van Allen rule and since there is no basis for finding that Congress repealed the rule by implication when it amended §3701, I would affirm the decision of the Texas Court of Appeals.

The Court attempts to avoid this line of cases by suggesting that almost everything said in several of these decisions was either “dicta,” ante, at 871, or “ambiguous,” ante, at 871, n. 14. Neither characterization can be *877plausibly made concerning the holding in Cleveland Trust Co. v. Lander, 184 U. S. 111, 115 (1902), where the Court rejected the argument accepted by the Court today by saying that “the trust company . . . seeks to nullify one provision of the Revised Statutes of the United States (section 5219) by another (section 3701), between which there is no want of harmony.” Likewise, as noted above, while Van Allen v. Assessors, 3 Wall. 573 (1866), did not expressly reject this argument, reliance on the predecessor of § 3701 was argued and the Court necessarily rejected it by basing its holding on § 5219.

I cannot agree with the Court’s suggestion that the Van Allen and Cleveland Trust Co. decisions were not approved in later cases such as Society for Savings v. Bowers. Certainly, by the time Society for Savings was decided, the Van Allen doctrine had been carried beyond § 5219 to shares taxes on corporations other than banks. 349 U. S., at 147-148. The Court concludes that “[t]he 1959 amendment to § 3701 certainly abolished the relevance of this formalistic theory” with regard to nonbank corporations. Ante, at 872, n. 14. To the contrary, in light of the legislative history discussed in the text concerning the 1959 amendment, it is at a minimum debatable whether a shares tax without a reduction for federal obligations on any corporation is prohibited by § 3701. But that is another case; these cases present essentially the same issue presented in Van Allen and Cleveland Trust Co., and like those decisions, we need go no further than § 5219 to decide it.