OPINION OF THE ATTORNEY GENERAL. STATE OF IOWA, OFFICE OF ATTORNEY GENERAL, DES MOINES, January 30, 1868. To the Committee on Constitutional Amendments, House of Repre sentatives: In reply to your resolution of this date, a copy of which is hereto appended, I have the honor to submit the following, viz: Recognizing the fundamental right that the people only can alter or amend the Constitution, it is provided in that instrument, Article 10, Sec 1, how (the mode and manner) any amendments may be submitted to or brought to the attention of the people – 1st. Any amendment may be proposed in either House of the General Assembly, and if agreed to by a majority of both Houses, shall be entered on the journals, &c., and referred to the Legislature to be chosen at the next general election, and published for three months previous to making such choice. Chapter 98, of the Acts of the Eleventh General Assembly, proposes several amendments to the Constitution. This proposition was agreed to by a majority of both Houses, and referred to the present General Assembly. It is suggested by Gov. Stone in his last message to the General Assembly, that grave doubts exist as to the regularity of the act (Chapter 101 of the Acts of the Eleventh General Assembly) referring said proposition to the present General Assembly and providing for its publication. With the greatest deference for the opinion therein expressed by His Excellency, Gov. Stone, I beg to submit, that these doubts are not well founded, for the following among other reasons: 2d. No formal reference to the next General Assembly is necessary. The approval of the proposition by a majority of both Houses, its entry on the journal with the yeas and nays, &c., is in and of itself a reference to the next General Assembly, both in form and substance. Any further action of the General Assembly in respect to such reference is a mere work of supererogation. 3d. It shall be published as provided by law, &c., for three months previous, &c. After the approval and entry on the journals, above mentioned, it becomes the manifest duty of the Secretary of State to make the publication without any further direction to make it as provided by law. The publication was in fact made, and the requirements of the Constitution with respect to this proposition have been complied with both in form and substance. 4th. Even if it should be deemed essential to the validity of such action, that special and formal direction should be given by the General Assembly, for the reference and publication of such proposition, certainly such direction can, in no sense, be said to be a law, to require an enacting clause and all the formalities of an Act of the General Assembly. A joint resolution is not only sufficient, but would be the more proper form to give it. In this view, Chap. 101, of the Acts of the last General Assembly, contains all the essentials of such a direction it is passed by both houses and approved by the Governor. The people, not the legislature, make and amend the Constitution. They desire, as early and speedily as the law will permit, to vote on these amendments, and I respectfully submit that no mere technical objections should be interposed to prevent or retard the action of the people in the premises. I think it will be found that not even a technical objection exists in the present case; on the contrary, the requirements of Article 10 of the Constitution, have been faithfully complied with in its letter and spirit. With great respect, &c., HENRY O'CONNER, Attorney General. SIRI have the honor to acknowledge the receipt of the following resolution, viz.: "Resolved, That the Attorney General of this State be and he is hereby requested to give in writing to the Senate at as early a day as practicable, his opinion as to whether the General Assembly has the power to tax the shares of stockholders in banks organized in the State of Iowa under the national banking law." In reply I beg to say: The question is one of great interest to the people of the State, and of no small importance in connection with the question of general revenue. Fortunately for the purpose of the present inquiry, the question has been so thoroughly discussed and so fully settled by recent decisions of the Supreme Court of the United States, and by the courts of last resort in the States of New York, Ohio, Indiana, Pennsylvania and our own State, that little remains for me but to collect and bring before the Senate the principles and questions which have been settled by these recent decisions. 1. It is clearly settled that the shares of stockholders in national banks, may be taxed by the several States, for State and municipal purposes. This is the principle distinctly and uniformly held in all of the following cases, all of them arising out of and since the passage of the National Bank Act: SUPREME COURT OF THE UNITED STATES,- Van Allen vs. The Assessors, N. Y., 3 Wallace, 573–581. Bradly vs. The People of Illinois; People of N. Y. ex re Deminy vs. Duer; People of N. Y., Mead vs. Commissioner of taxes.-American Law Register, June, 1867. INDIANA, -- Auditor and Treasurer of Marion county vs. Stiltz.American Law Register, June, 1867. OHIO, Frazier vs. Subern.-American Law Register, June, 1867. PENNSYLVANIA, -Markoe et al vs. Hartrauft et al. American Law Register, June, 1867. The above decisions, published in the Law Register for June, 1867, are accompanied by a learned and exhaustive note by the Hon. John F. Dillon, a Judge of our own Supreme Court and one of the editors of that journal, in which the question is fully discussed, and the same result arrived at, viz: that the shares are taxable. Iowa, Hubbard et al vs. National Bank vs. Scott Co.; Young. - Supervisors Johnson Co.; Davenport The above three cases, decided by the Supreme Court of this State at the June term, 1867, lay down the same general principle. These cases are not yet reported. Why, then, it may be asked, are these shares not taxed in accordance with the provisions of chapter 108, of the laws of the Eleventh General Assembly? I answer, the difficulty arises from a failure in our laws to conform to the limitations of the 41st section, of the Act of Congress, estab lishing national banks. The provisions of that section, touching the matter under consideration, are as follows, viz: Provided, That nothing in this Act shall be construed to prevent all the shares in any of the said associations, held by any person or body corporate from being included in the valuation of the personal property of such person or corporation in the assessment of taxes imposed by, or under State authority, at the place where such bank is located, and not elsewhere, but not at a greater rate than is assessed upon other monied capital in the hands of individual citizens of such State. Provided, further, That the tax so imposed under the laws of any State, upon the shares of any of the associations authorized by this Act, shall not exceed the rate upon the shares in any of the banks organized under the authority of the State where such association is located. By our laws we tax the capital of our banks, not the shares. "Taxes shall be levied on and paid by the corporation and not upon the individual stockholder, the value of the property to be ascertained annually by the bank commissioners herein provided for, and the rate of taxation shall be the same as required to be levied on other taxable property by the revenue laws of the State." (Rev. sec. 1598.) By the National Banking Act we can not tax the capital but may tax the shares. In pronouncing the opinion of the Court in the Iowa cases above cited Judge Wright remarks: "We therefore conclude that as our legislation now stands the shares in national banks in the State can not be taxed. The remedy is with the Legislature. Other States misapprehending the full purport and bearing of the national banking law and in advance of its full exposition by the federal judiciary have made the same mistake. In many of them their laws have been so amended as to meet the difficulty. If the Act of Congress shall remain unchanged it will be for the legislative department to take such action as may be deemed advisable to subject this property to its due proportion of the public burdens." The remedy sought, is, in my opinion, clearly within the power of the Legislature, and the surest, safest and best way to effect it, is by a repeal of our general and State banking acts. These acts are now, so to say, dead letters on the statute book; we have no banking under their provisions carried on in the State. If, at any time in the |