Since the decision of this court on a former appeal that the Baltimore National Bank was, in the first instance at least, required to pay the tax assessed on the shares of its preferred stock held by the Reconstruction Finance Corporation, and the affirmance of that decision by the Supreme Court of the United States, the United *Page 405 States Congress has passed an act providing that, notwithstanding any privilege or consent previously granted, the shares of preferred stock of national banks, "and the shares of preferred stock, capital notes, and debentures of State banks and trust companies," acquired by the Finance Corporation, should not be subject to any taxation by any state or local taxing authority. Act of Congress March 20th, 1936, 49 Stat. 1185, Tit. 12, U.S. Code Ann., sec. 51d; State Tax Commission v. Baltimore NationalBank, 169 Md. 65, 180 A. 260; Baltimore National Bank v. StateTax Commission, 297 U.S. 209, 56 S. Ct. 417, 80 L. Ed. 586. And now, another year's tax having been assessed to the bank on the same stock, an appeal was prosecuted by the bank to the lower court, and the tax there held illegal by reason of immunity conferred by that act; and from that ruling the State Tax Commission has appealed. Code, art. 81, sec. 259. The Finance Corporation, from which any tax lawfully imposed on the bank might be collected, was permitted to intervene on the appeal below. Code, art. 81, secs. 6 (6), 10(b), and 15(e), as amended by Laws 1929, ch. 226.
The question of constitutionality of any intergovernmental immunity to stock held by this particular stockholder has been argued again. It was a question which the Supreme Court did not decide "either directly or indirectly," on affirmance of the previous decision; the ground of the affirmance having been that Congress had expressly authorized the taxation of all shares of national banks. National Banking Act, Rev. St. sec. 5219, as amended, 12 U.S. Code Ann., sec. 548. I see no reason for reconsidering the point, as I conclude the decision of it is not necessary to the disposition of the present case. I concur in the view of the lower court that a valid immunity has been granted to the stock held by this stockholder, and that the bank, primarily liable for payment, may not be required to pay the tax on it.
It is taken as settled that stock in national banks may be taxed only by consent of the United States Congress. People ofNew York v. Weaver, 100 U.S. 539, 543, 25 *Page 406 L.Ed. 705; Talbott v. Silver Bow County, 139 U.S. 438, 440, 11 S. Ct. 594, 35 L. Ed. 210; Davis v. Elmira Savings Bank,161 U.S. 275, 283, 16 S. Ct. 502, 40 L. Ed. 700; State Tax Commission v.Baltimore Nat. Bank, 169 Md. 65, 68, 180 A. 260. And there can be no question of the purpose of the recent act to deny that consent for taxing the stock of this particular stockholder. The act extends beyond that purpose in its attempted exemption of stock held in state banks and trust companies, but I am of opinion that the validity of the extended exemption need not be considered while passing on that of the national bank stock. The act contains an express direction, section 51f, that: "If any provision, word, or phrase of sections 51d and 51e of the title, * * * is held invalid, the remainder of such sections * * * shall not be affected thereby." It is true that such a saving clause may not be effective when it is obvious that the remainder of the statute could not, or would not, be intended to stand as the legislative will. Carter v. Carter Coal Co., 298 U.S. 238, 312, 56 S. Ct. 855, 873, 80 L. Ed. 1160. But that is an exceptional condition. The direction to sever the parts and leave the remainder in force is to be followed if it can be; and here I see no adequate reason for not following it. Fidelity GuarantyFire Corp. v. State Tax Commission, 172 Md. 652, 661,193 A. 164.
A broad question, whether the powers with which the Finance Corporation was invested by the terms of the act under which it was formed (Act Jan. 22d 1932, 47 Stat. 5, 15 U.S. Code Ann., sec. 601 et seq.) could constitutionally be exercised at all by the federal government, was raised on the former appeal, and in the Supreme Court appears to have been taken as beyond dispute. Under the circumstances I should not be disposed to consider it again, but should leave it to be decided by the higher court, if found necessary.