This was a proceeding under the law of Kentucky to back assess the shares of stock in the Citizens National Bank as property omitted from the tax list. After much petitioning, pleading, and demurring, and two appeals to the court of appeals of the state of Kentucky, 1,473 shares were assessed for the taxes of 1896, 1897, and 1898, and 990 shares for the taxes of 1899, with a penalty of 20 per cent added to the tax each year. The proceeding under which this result has been reached was started in the county court of Boyle county, Kentucky, in March, 1901, by a petition filed by the sheriff of the county for the purpose of causing the shares of the bank to be assessed as property omitted by the assessor. The authority under which the petition was filed is found in § 4241, Kentucky Statutes, and the Kentucky act of March 21, 1900. As the validity of this later act is challenged, we set it out in the margin.

Whereas the Supreme Court of the United Sattes has lately decided that article three (3), CHAPTER 103, of the acts of 1891-1892-1893, is void and of no effect in so far as the same provides for taxation of the franchise of national banks, in consequence of which decision there is not now and has not been, since the adoption of said article in 1892, any adequate mode of taxing national banks, while state banks are now, and have been, ever since 1892, taxable for all purposes, state and local, therefore

Be it enacted by the general assembly of the commonwealth of Kentucky:

Sec. 1. That the shares of stock in each national bank of this state shall be subject to taxation for all state purposes, and shall be subject to taxation for the purposes of each county, city, town, and taxing district in which the bank is located.

Sec. 2. For the purposes of the taxation provided for by the next preceding section, it shall be the duty of the president and the cashier of the bank to list the said shares of stock with the assessing officers authorized to assess real estate for taxation, and the bank shall be and remain liable to the state, county, city, town, and district for the taxes upon said shares of stock.

Sec. 3. When any of said shares of stock have not been listed for taxation for any of said purposes, under levy or levies of any year since the adoption of the revenue law of 1892, it shall be the duty of the president and the cashier to list the same for taxation under said levy or levies: Provided, That where any national bank has heretofore, for any year or years, paid taxes upon its franchise, as provided in article three (3) of the revenue law of 1892, said bank shall be excepted from the operation of this section as to said year or years: And provided further, That where any national bank has heretofore, for any year or years, paid state taxes under the Hewitt bill in excess of the state taxes required by this act for the same year or years, said bank shall be entitled to credit by said excess upon its state taxes required by this act.

In the case of the Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 43 L. ed. 850, 19 Sup. Ct. Rep. 537, this court held invalid certain legislation of the state of Kentucky, providing for the taxation of national banks, as laying a tax, not upon shares, which was permissible, but upon the property and franchises of such banks, which was inadmissible under the restrictions of § 5219, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3502). In consequence of this decision, this act of March 21, 1900, was passed, as shown both by its subject-matter and the recital in the preamble. The act is both prospective and retrospective. Of its prospective features, we need say nothing. The 3d section is retrospective, in that provides for the return of shares in national banks which, during the years of the operation of the legislation held invalid by this court, had not been returned for taxation, by making it the duty of certain officers of such banks to list for taxation for the years between 1892 and 1899, all shares in such banks which had not been returned, and by requiring all such banks to pay the tax and penalty upon all such omitted shares, subject, however, to certain deductions and credits on account of taxes paid by such banks under the act held invalid, as well as under the prior Hewitt act.

In Covington v. First Nat. Bank, 198 U. S. 100, 49 L. ed. 963, 25 Sup. Ct. Rep. 562, this court was required to consider the effect of the 3d section of the act in imposing upon national banks a liability for the taxes and penalties upon such omitted shares, which, during the years covered by this section, had been held by persons not domiciled within the state of Kentucky. The question arose under a bill filed in a circuit court of the United States to enjoin the imposition of liability upon a national bank for taxes and penalties upon shares held between 1892 and 1900 by persons who were not domiciled in Kentucky, it being alleged that the purpose of the proceeding against the bank was to charge the bank, without discrimination between domestic and foreign-held shares. Prior to this act of March 21, 1900, there was no law requiring a return for taxation of bank shares held by owners not domiciled within the state, either by such holder or by the bank in which such shares were held. For this reason we held in the case referred to that this act imposed, for the years prior to its passage, a liability upon national banks for taxes upon shareholders domiciled outside of the state, which was not borne by other incorporated moneyed institutions. Upon this subject, the court, speaking by Mr. Justice Day, said:

'Without considering the question of constitutional power to tax nonresident shareholders by means of this retroactive law, it seems to us that, in imposing upon the bank the liability for the past years, for taxes and penalty, upon stock held without the state, and which, before the taking effect of the act under consideration, it was not required to return, there has been imposed upon national banks in this retroactive feature of the law a burden not borne by other moneyed capital in the state. This law makes a bank liable for taxes upon property beyond the jurisdiction of the state, not required to be returned by the bank as agent for the shareholders, by a statute passed in pursuance of the authority delegated in § 5219, thus imposing a burden not borne by other moneyed capital within the state.'

In the case now before us for consideration, a liability has been imposed upon the Citizens Bank, the plaintiff in error, not for taxes and penalties upon shares of the bank held by shareholders domiciled beyond the state,—as was attempted in Covington v. First Nat. Bank, supra,—but exclusively upon shareholders domiciled within the state. The liability is limited to the tax and penalty upon shares owned by shareholders domiciled within the state, the name, residence, and amount due from each such shareholders being distinctly set down in the decree.

Neither is the act lacking in due process if, as we shall assume for the moment is the case, the procedure under the 3d section is but a new remedy for a tax liability imposed by prior law of the state upon resident holders of shares of the bank.

Sec. 5210, Rev. Stat., requires every such bank to keep a correct list of its shareholders accessible to taxing officers, and by § 5219, Rev. Stat., the legislature of each state may, for itself, determine the manner and method for taxing shares in such banks, subject only to the restrictions named therein. In making the bank the agent for its own shareholders in proceedings brought to compel a return and secure an assessment, and in imposing upon the bank a liability for the tax so assessed against the shareholders, the act only follows the wellsettled procedure sanctioned in First Nat. Bank v. Kentucky, 9 Wall. 353, 19 L. ed. 701; Van Slyke v. Wisconsin, 154 U. S. 581, and 20 L. ed. 240, 14 Sup. Ct. Rep. 1168; and First Nat. Bank v. Chehalis County, 166 U. S. 440, 41 L. ed. 1069, 17 Sup. Ct. Rep. 629.

That the 3d section does not impose a liability upon either the domestic shareholders or the bank which did not exist before, under the prior law of the state, was settled by the case of Scobee v. Bean, 109 Ky. 526, 59 S. W. 860. In that case the shares of certain resident shareholders had been assessed for taxes laid for years prior to this act of 1900, and it was urged that since the special legislation for the taxation of such shares had been held void by this court in Owensboro Nat. Bank v. Owensboro that there was no law of the state under which these shares could be assessed. But the Kentucky court, after an elaborate review of the general taxing law of the state, held that there was full prior statutory authority for the taxation of such shares, and that under that law, if the bank failed to return and pay the tax upon such shares, it was the duty of the shareholders to do so. That case has been followed in a number of other cases by the same court, and it is the basis upon which the 3d section of this act of March 21, 1900, was upheld in the present case as not imposing a new liability, but as simply providing another method for the assessment of shares which had escaped assessment under the prior law, because neither the shareholders nor the bank had returned them for taxation. In Covington v. First Nat. Bank, 198 U. S. 100, 111, 49 L. ed. 963, 968, 25 Sup. Ct. Rep. 562, 565, this court, speaking by Mr. Justice Day, accepted this as the interpretation of the statutory law of Kentucky by the highest court of the state, saying:

'Following the state court in the interpretation of its own statutes, it may be said that, as to shareholders residing in Kentucky and over whom the state has jurisdiction, the supreme court of that state has construed its statutes as requiring shareholders in national banks for the years 1893 to 1900, inclusive, to return their shares for taxation; and if they did not make the return, the duty was required of the corporation. In this view of the law it may be that, as to local shareholders, the act of March 21, 1900, as held by the supreme court of Kentucky, created no new right of taxation, but gave simply a new remedy, which, by the law, is operative to enforce pre-existing obligations. It may be admitted that § 5219 permits the state to require the bank to pay the tax for the shareholders. First Nat. Bank v. Kentucky; Van Slyke v. Wisconsin; and First Nat. Bank v. Chehalis County,—supra.

This construction of the prior law and of the act of 1900 was reaffirmed upon the first appeal of the present case, where the court said:

'The act of March 21, 1900, did not, therefore, make that taxable whch was not taxable before, but simply provided another mode for the assessment of the shares of stock and the payment of the taxes. It was the duty of the assessor to make the assessment. It was also the duty of the president and cashier of the bank to list the shares of stock with the assessor; but when the assessment was not made, the property was simply omitted from the tax list, and the sheriff is authorized by § 4241, Ky. Stat. 1903, to institute the proceeding to have any omitted property assessed. A penalty may be properly imposed in the proceeding because the property was not listed with the assessor, as required by law, and stood as any other property for the assessment of which a proceeding under § 4241 may be instituted. While neither the bank nor its president nor its cashier is the owner of the shares of stock, the bank is made by the act the agent of the shareholders, and the notice to it is notice to his agent, within the meaning of § 4241. The president and cashier were properly made defendants because it is made their duty by the statute to list the stock. The bank is required to keep a list of its shareholders, and therefore knows who they are. Notice to the agent in an assessment of property is sufficient notice to his principal.' Com. v. Citizens' Nat. Bank, 117 Ky. 946, 957, 80 S. W. 158.

But it is said that in Covington v. First Nat. Bank this court held the 3d section broad enough to include liability for omitted returns of shares held by nonresident shareholders, and for that reason discriminated against national banks. But in that case the proceeding enjoined was one for the purpose of fixing liability upon the bank without discriminating between resident and nonresident shareholders. But in the present case the state court has not imposed liability upon the bank for taxes or penalties upon shareholders who were nonresidents, but has applied it as affording a valid remedy for the collection of taxes and penalties upon residents who had not made return, as required under the prior law. As thus applied, the bank has neither been deprived of any rights nor compelled to bear any burden in conflict with § 5219, Rev. Stat., upon which it relies for protection. But if it be assumed—an assumption not sustained by any decision of the Kentucky court of appeals—that the 3d section is broad enough to include liability for delinquent taxes claimed from both resident and nonresident stockholders, none of the latter class are here complaining, and such an objection cannot be made by one unaffected by the alleged invalid feature. Austin v. Boston, 7 Wall. 694, 19 L. ed. 224; Albany County v. Stanley, 105 U. S. 305, 25 L. ed. 1044; The Winnebago (Iroquois Transp. Co. v. De Laney Forge & Iron Co.) 205 U. S. 354, 51 L. ed. 836, 27 Sup. Ct. Rep. 509.

That the body of shareholders in 1901, when the proceeding was started, was not composed of the same individuals as the body during the years for which the taxes were due, is doubtless true. But the shares pass from one holder to another, subject to the burden of taxes; and if not returned by either the shareholder or the bank, as required by the prior law, the liability remains to be enforced until barred by limitation of time. The liability of the bank is that of the shareholder, and its reimbursement must come from those who hold the shares when the bank liability is enfored. In Seattle v. Kelleher, 195 U. S. 351, 49 L. ed. 232, 25 Sup. Ct. Rep. 44, it is said that liability for a tax is not subject to the rules applicable to the vendor's equity. 'A man cannot get rid of his liability to a tax by buying without notice.' The liability of the purchaser of shares for taxes not paid, and of the bank, as agent for its shareholders, is one of the notorious and necessary consequences of the long-sanctioned right of the states to compel such banks to return their shares for taxation, and to pay the assessment thereon if the shareholder does not. The legality of this method was reasoned out in First Nat. Bank v. Kentucky, supra,—a case arising under the Kentucky law imposing liability upon banks for the tax upon shareholders. This answers the objection that in 1898 a reduction in the number of shares had occurred. That only means that each share of $1,000 was reduced to a share of $666.66; the shareholders remained the same, the proportion held by each in the capital being the same as before the reduction. The tax upon the share before it was reduced rested upon the same share after it had been reduced. None of the shares taxed had in fact gone out of existence before the proceeding to compel returns for purposes of taxation. The original 1,500 shares were represented by the outstanding 1,000 shares, and were in the hands of the same general body of shareholders.

The objection made that the act violates the supposed contract under the Hewitt act is answered by Citizens' Sav. Bank v. Owensboro, 173 U. S. 636, 43 L. ed. 840, 19 Sup. Ct. Rep. 530, 571, and Covington v. First Nat. Bank, 198 U. S. 100, 49 L. ed. 963, 25 Sup. Ct. Rep. 562.

The other assignments present no question which need be more particularly answered.

Judgment affirmed.

I am constrained to dissent because I think, in substance and effect, the retroactive tax now upheld is a tax on the bank and its assets, and is therefore void. The power to tax is controlled by § 5219, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3502), and as, in may judgment, the tax which is now sustained is in conflict with that section, in my opinion there should be a judgment of reversal.