On Rehearing. We do not think that the majority opinion is contrary to Cummings v. Merchants' National Bank, 101 U.S. 153, 157,25 L. Ed. 903. It is there emphasized that "the bank as a corporation is not liable for the tax, and occupies the position of stakeholder, on whom the cost and trouble of the litigation should not fall. If it pays, it may be subjected to a separate suit by each shareholder. If it refuses, it must either withhold dividends, and subject itself to litigation by doing so, or refuse to obey the laws, and subject itself to suit by the State. It holds a trust relation which authorizes a court of equity to see that it is protected in the exercise of the duties appertaining to it. To prevent multiplicity of suits, equity may interfere."
While under our law, Acts 1923, page 161, shares are assessed against the shareholders, it is also provided that "the bank shall pay *Page 498 for the shareholders respectively the tax so assessed, against their shares," and that "it shall be no ground of objection to such assessment of shares that it is entered upon the assessment book in the corporate name." Section 6. This court has carefully considered such theory of taxing national bank shares, and it of course follows in line with the United States courts that it is the distinct independent interest of the shareholder which is taxable by a state, together with its real property, and on shares held by it in other national banks, but not its capital. National Commercial Bank of Mobile v. Mayor, etc., of Mobile, 62 Ala. 284, 34 Am. Rep. 15; Sumter County v. National Bank of Gainesville, 62 Ala. 464, 34 Am. Rep. 30; Des Moines Nat. Bank v. Fairweather, 263 U.S. 103, 44 S. Ct. 23,68 L. Ed. 191; 37 Cyc. 830. On the general theory of taxing the shares of stock in a corporation, see Commissioners Court v. State, 172 Ala. 242, 55 So. 623.
We have shown that in Alabama there is provided not only an adequate remedy to test the legality of the assessment, but also to prevent a multiplicity of suits. Ward v. First National Bank (Ala. Sup.) 142 So. 93.1 This is usually held to be sufficient to prevent injunctive relief. Indiana Mfg. Co. v. Koehne, 188 U.S. 681, 23 S. Ct. 452, 47 L. Ed. 651.
In National Commercial Bank of Mobile v. Mayor, etc., of Mobile, supra, equity relief was denied, though the theory of a multiplicity of suits was argued in brief.
In the Cummings' Case, supra, it also recognized the fact that there was a remedy by paying the tax under protest, and suing at law to recover it. But held that the bank was not in condition thus to protect itself, because of the matter which we have quoted from that case. Whereas, under our law the bank in this respect is not a mere stakeholder, but is required by law to pay the tax, and is debtor to the state for it. First National Bank v. Commonwealth of Kentucky, 9 Wall. 353,19 L. Ed. 701.
Now if the tax is lawful, no one can complain on account of its payment by the bank; if it is not lawful, the bank may in one suit, in its own name, sue and recover it. Why would the bank which by our law is liable for the tax be thereby subjected to greater hardship, cost, or trouble than it would in a suit by it in equity to enjoin collection of the tax?
The other cases relied on by appellee are not authoritative respecting statutes such as ours. In Public Nat. Bank v. Keating (C.C.A.) 47 F.(2d) 561, the opinion uses the language of the Cummings' Case in describing the effect of the statute of New York upon the relation of the bank to its shareholders in paying the taxes on its stock. In Charleston National Bank v. Melton (C. C. W. Va.) 171 F. 743, the same is true. Though it is made the duty of the bank to pay the tax, it is provided that the bank may recover the amount with interest from the owners, or deduct it from dividends accruing.
In the case of First National Bank v. Anderson,269 U.S. 341, 46 S. Ct. 135, 70 L. Ed. 295, a similar bill was filed in Iowa. It was held by the United States Supreme Court that as the state court had treated it as cognizable in equity, it would be so treated in the United States court because in that respect the state law and procedure was controlling. The state Supreme Court affirmed a decree of the lower court sustaining a demurrer to the bill, but did not treat the equitable remedy sought. For that reason the United States court declined to do so. Id., 196 Iowa, 588, 192 N.W. 6.
The Supreme Court of Florida, without stating the effect of its statutes taxing bank shares, has recently sustained the equity of such a bill filed by a bank "on behalf of its stockholders" upon the authority of Hills v. National Albany Exchange Bank, 105 U.S. 319, 26 L. Ed. 1052, and First National Bank v. City of Covington (C. C.) 103 F. 523. See Roberts v. American National Bank, 97 Fla. 411, 121 So. 554. The case of Hills v. National Albany Exchange Bank, supra, was written by the same justice who wrote the Cummings' Case, supra, and without discussion asserted that the question is controlled by the Cummings' Case and by Pelton v. Commercial National Bank, 101 U.S. 143, 25 L. Ed. 901. The Pelton Case relates to the Ohio statute, as does the Cummings' Case. In Hills v. National Albany Exchange Bank, supra, there is no recital of the statutes of New York which applied. But it was treated inferentially as though they had the same effect as the statute of Ohio. In First National Bank v. City of Covington, supra, by a United States District Court of Kentucky, it is pointed out that there was no way to obtain from the state authorities a refund of the amount paid, nor to compel an adjustment in the collection of other taxes. 103 F. pages 527, 528.
But we have shown that there is an adequate remedy at law in this state for a refund (Ward v. First National Bank, supra), and there does not appear any distinct ground for equity to assume jurisdiction, when the substantial effect of our statute is considered.
Application for rehearing overruled.
All the Justices concur, except THOMAS, J., who dissents.
1 Ante, p. 10. *Page 499