The opinion
Separate opinion by
Mr. Justice Lawrence: I concur with my brethren in the decision of this case, and in very much of the reasoning of the chief justice, but not in all the propositions of the foregoing opinion. Hy concurrence in the decision is based upon the following considerations:
The bonds issued by the general government, are not subject to State taxation. When, however, that government, by an act of congress, offered to the holders of these bonds the privilege of making them the basis of banking, it had the unquestionable right to annex to the exercise of this new and most valuable franchise, such conditions as it thought proper. By the sixty-fifth section of the banking law of 1863, congress expressly reserved the right to amend or repeal the act at its pleasure. By the banking law of June 3,1864, which repealed the act of 1863, it is provided in the forty-first section, that the act shall not be construed to prevent the shares of bank stock, created under the act, from being subject to State taxation. This, it is true, is not a grant of power, because, as stated by the chief justice, thepower of State taxation is not derived from, and does not depend, upon the federal government. But it is an express relinquishment by the federal government of all claim that this new species of property, thus authorized to be created out of government bonds, should be withdrawn from State taxation on the ground that it was the creation of the federal government. Conceding that the government had the power to exempt this stock from State taxation, yet it explicitly disclaims the intent to do so, and, although the bonds themselves are beyond the power of the States, yet, if the bond holders elect to convert them into bank stock, and thereby come into the exercise of a valuable pecuniary franchise not possessed by them in the character of mere bondholders, they must do so on such conditions as the act giving this privilege imposes. One of these conditions is that the shares of stock shall be subject to State taxation, and these bond holders having chosen to accept and exercise this new franchise, I do not perceive how they can now be permitted to assert that they hold the franchise discharged of its conditions.
As to the question made upon the equality of taxation between the State and national banks, I fully agree with my brethren that this equality, which is secured both by our Constitution and our revenue law, is not affected by the fact that the taxes are assessed against the corporation in the case of State banks, and against the individual stockholders in the case of national banks. The rate of taxation is, in both cases, the same. The difference lies simply in the mode of payment.. Under our banking and revenue law a State bank could not escape taxation on its stock by withdrawing its funds from the-ordinary investment of commercial paper, and purchasing government bonds. The bonds would not be taxable, but the* bank stock would remain taxable as before.