flicted upon them. Bridgeport Savings Bank v. Feitner, 191 N. Y.
88, approved. Ib.
3. Discrimination against by State; taxation; sufficiency of showing.
The Federal courts will not overthrow a system of state taxation as
discriminatory against national banks under § 5219, Rev. Stat.,
unless such discrimination is affirmatively shown. Ib.
4. Moneyed capital within meaning of § 5219, Rev. Stat.
Mercantile Bank v. New York, 121 U. S. 138, followed as to what con-
stitutes moneyed capital within the meaning of § 5219, Rev. Stat.
Ib.
5. Powers; restrictions; payment of state taxes for depositors not ultra vires.
While a national bank can only transact such business as the Federal
statutes permit, it may, under its incidental powers, make reason-
able business agreements in regard to its deposits including the
payment of state taxes thereon pursuant to the laws of the State
in which it is located. Such an agreement is not ultra vires. Cle-
ment National Bank v. Vermont, 120.
6. State taxation on deposits; validity of.
A tax upon deposits in a national bank to be paid by the depositors held
in this case not to be a tax upon the franchise of the bank. Ib.
7. State taxation on deposits; effect of National Bank Act.
The National Bank Act does not withdraw credits of depositors in
national banks from the taxing power of the State. Ib.
8. State taxation on deposits; power of classification.
Under its broad powers of classification for taxation, a State may
classify depositors in national banks so long as the tax is not essen-
tially inimical to such banks in frustrating the purpose of the legis-
lation or impairing their efficiency as Federal agencies. Ib.
9. State taxation; effect of § 5219, Rev. Stat.
The object of § 5219, Rev. Stat., is to prevent hostile discrimination
against national banks; and a state tax to be in conflict therewith
must constitute such a discrimination. Ib.
10. State taxation; discrimination; effect of § 815, c. 37, Vermont Pub.
Stat.
This court finds no basis for the charge of injurious discrimination
against national banks in § 815 of Chapter 37 of the Public
Statutes of Vermont. Ib.
11. Taxation of, by State; validity under § 5219, Rev. Stat.
Section 5219, Rev. Stat., deals with shareholders of national banks as
a class and not as individuals, and a scheme of taxation that is fair
to the class will not be held invalid because of a particular case
arising from circumstances personal to the individual affected.
Amoskeag Savings Bank v. Purdy, 373.
See CONSTITUTIONAL LAW, 12, 15.
NATURALIZATION.
1. Right to, prior to act of June 29, 1906.
The statutes, as they existed prior to June 29, 1906, conferred the right
to naturalization upon such aliens only as contemplated the con-
tinuance of a residence already established in the United States.
Luria v. United States, 9.
2. Status of naturalized citizen.
Under the Constitution of the United States a naturalized citizen
stands on an equal footing with the native citizen in all respects
save that of eligibility to the Presidency. Ib.
3. Spirit of the laws; duties of citizenship.
The spirit of the naturalization laws of the. United States has always
been that an applicant if admitted to citizenship should be a
citizen in fact as well as name and bear the obligations and duties of
that status as well as enjoy its rights and privileges. Ib.
4. Cancellation of certificate; residence in foreign country contemplated by
§ 15 of act of June 29, 1906.
This court concurs in the conclusion reached by the District Court that
the residence in a foreign country of one whose certificate of natu-
ralization was attacked as fraudulent was intended to be and was
of a permanent nature and justified the proceeding on the part of
the United States to cancel the certificate under § 15 of the act of
June 29, 1906. Ib.
5. Cancellation of certificate; evidence to overcome presumption of per-
manent residence.
Unverified certificates of unofficial parties as to residence of a natural-
ized person in a foreign country held insufficient to overcome the
presumption of permanent residence created under § 15 of the
act of June 29, 1906. Ib.
6. Cancellation of certificate; application of par. 2, § 15, act of 1906.
The provisions of the second paragraph of § 15 of the act of June 29,
1906, dealing with the evidential effect of taking up a permanent
residence in a foreign country within five years after securing a
certificate of naturalization applies not only to certificates issued
under that law but also to those issued under prior laws. Ib.
7. Cancellation of certificate; constitutional validity of § 15 of act of 1906.
The provisions of § 15 of the act of June 29, 1906, are not unconstitu-
tional as making any act fraudulent or illegal that was honest and
legal when done, or as imposing penalties, or doing more than pro-
viding for annulling letters of citizenship to which the possessors
were never entitled. (Johannessen v. United States, 225 U. S. 227.)
Ib.
8. Cancellation of certificate; constitutional validity of § 15 of act of 1906.
The provision in § 15 of the act of June 29, 1906, that the taking up of
a permanent residence in a foreign country shortly after natural-
ization has such a bearing upon the purpose for which naturaliza-
tion was sought that it is reasonable to make it a presumption, re-
buttable by proof to the contrary, that there was an absence of
intention to permanently reside in the United States and is not
unconstitutional as a denial of due process of law. Ib.
9. Cancellation of certificate; nature of proceeding for; right to trial by jury.
A proceeding under § 15 of the act of June 29, 1906, to cancel a certifi-
cate of naturalization on the ground that it was fraudulently issued
is not a suit at common law but a suit in equity similar to a suit to
cancel a patent for land or letters patent for an invention and the
defendant is not entitled to a trial by jury under the Seventh
Amendment. (United States v. Bell Telephone Co., 128 U. S. 315.)
10. Fees in; county clerk's right to, controlled by local law.
The construction given by the highest court of California to the provi-
sions in the state statute regarding the compensation of county
clerks, followed; and held that the portion of fees retained under
the act of Congress of June 29, 1906, c. 3592, 34 Stat. 596, by a
county clerk in naturalization proceedings should be accounted
for by him to the county as public moneys. Mulcrevy v. San
Francisco, 669.
11. Fees in; county clerk's right to, controlled by local law.
The fact that a state or county official may also under an act of Con-
gress be an agent of the National Government does not affect his
relations with the county and relieve him from accounting for fees
received from such Government if his contract requires him to
account for all fees received by him even though, so far as the
National Government is concerned, he is entitled to retain them
in whole or in part for services rendered. Ib.
1. Elevators; care in operation.
Where the possibility of their occurrence is clear to the ordinarily pru-
dent eye, one operating an elevator must guard against accidents
even though they may occur in an unexpected manner. (Wash-
ington & Georgetown R. R. Co. v. Hickey, 166 U. S. 521.) Munsey
v. Webb, 150.
2. Elevators; dangers to be guarded against; effect of finding of jury.
Where there is a special source of danger in operating an elevator this
court will not say, against the finding of a jury, that such danger
need not be constantly guarded against. Ib.
3. Measure of damages; sufficiency of instruction as to.
An instruction that the jury might consider the income and earning
capacity of deceased, his business capacity, experience, health con-
ditions, energy and perseverance during his probable expectancy
of life, will not be held to be too general in the absence of a suitable
request of the defendant for an instruction with greater particu-
larity. Phoenix Ry. Co. v. Landis, 578.
4. Proximate cause; effect on appeal of finding by jury.
Where the jury may properly find that negligence to guard against a
possible, although unusual, accident in an elevator was the proxi-
mate cause of the injury, the appellate court will not reverse be-
cause the negligence was merely a passive omission. Munsey v.
Webb, 150.
NEGOTIABLE INSTRUMENTS.
See BILLS AND NOTES.
NEW MEXICO.
See CONGRESS, POWERS OF, 2;
See BANKRUPTCY, 9, 11, 13, 14, 15;
CUSTOMS LAW, 3;
INSURANCE, 1.
ONUS PROBANDI.
See EVIDENCE;
INDIANS, 6.
OSAGE INDIAN RESERVATION.
1. Municipality as proper party defendant in suit to enjoin enforcement of
rates.
In a suit by a public utility corporation to enjoin enforcement of rates
claimed to be confiscatory, the municipality is the proper party to
be made defendant, and as such it can represent all parties inter-
ested. In re Engelhard, 646.
2. Municipality, as representative of a class, on reference to determine
rights of individuals in telephone rates wrongfully exacted by company.
Where a telephone company has sued the municipality to enjoin rates
as confiscatory and an injunction has been granted upon the com-
pany paying into a fund the excess collected from the subscribers,
the municipality is the proper party to represent all the subscribers
on a reference to determine the amount of refund to which each
is entitled after the rates have been held not confiscatory and the
injunction dissolved. Ib.
3. Same; right of subscriber to intervene.
Under such conditions a single subscriber cannot represent all the
subscribers as a class and the court is not compelled under Equity
Rule 38 to allow him to intervene. Ib. ·
See ACTIONS, 7;
APPEAL AND ERROR, 1-4;
INTERSTATE COMMERCE, 4;
RATE REGULATION, 10;
1. Right of one partner as against interests of others.
On the record in this case, held, that a partner who had kept alive a
lease on property which his firm had acquired from him through
another source of title so as to protect the interest of the firm
against attacks from outside parties could not subsequently recover
the property under the lease to the detriment of the other partners.
Van Syckel v. Arsuaga, 601.
2. Right of partner to recover property sold by him to partnership.
There is evident lack of merit in the contention of a partner to recover
|