HICKENLOOPER, Circuit Judge.
This cause presents for determination the question whether Rev. St. § 5219- as amended (12 USCA § 548) has been violated in respect of the assessment of local taxes upon the shares of stoek of three national banks in the city of Columbus, Ohio, for the years 1926 and 192,7. Such banks are instrumentalities of the federal government, and neither their assets nor the shares of their capital stoek may be subjected to property taxes except by and with the consent of the fefleral government. The applicable condition upon which this consent is given is printed in the margin.1 The District Court held this condition to- have been breached and issued a permanent injunction. 45 F.(2d) 213. The defendant appeals.
The restriction .imposed upon the power of the státe to tax the shares of stock of a national bank is concerned only with that part of moneyed capital in the hands of individual citizens of the state which comes “into competition with the business of national banks.” Its main purpose is to prevent “an unequal and unfriendly competition with national banks, by favoring shareholders in state banks or individuals interested in private banking or engaged in operations and investments normally common to the business of banking.” First National Bank v. Hartford, 273 U. S. 548, 558, 47 S. Ct. 462, 71 L. Ed. 767, 59 A. L. R. 1; First National Bank v. Anderson, 269 U. S. 341, 347, 348, 46 S. Ct. 135, 138, 70 L. Ed. 295; Des Moines National Bank v. Fairweather, 263 U. S. 103, 116, 44 S. Ct. 23, 68 L. Ed. 191; Mercantile Nat. Bank v. New York, 121 U. S. 138, 155, 7 S. Ct. 826, 30 L. Ed. 895. Obviously this discrimination may be practiced as well by applying unequal and discriminatory rules for [481] the valuation of property (Des Moines National Bank v. Fairweather, supra.; Whitbeck v. Mercantile National Bank, 127 U. S. 193, 198, 8 S. Ct. 1121, 32 L. Ed. 118; Now York v. Weaver, 100 U. S. 539, 545, 25 L. Ed. 705), as by taxing tho shares of stock of national banks at higher rates than are applied to oilier moneyed capital, as in Minnesota v. First National Bank, 273 U. S. 561, 47 S. Ct. 468, 71 L. Ed. 774; First National Bank v. Anderson, supra, and other eases where the discrimination was the indirect outgrowth of a. general change in the system of taxation of the state from that of ad valorem taxes to one of an income tax; but before the tax upon the shares of stock of a national bank inay be held invalid it must appear1 not only that oilier moneyed capita,!, within the definition uniformly adopted by the 8 up ¡eme Court, is favored by a lighter burden of taxation than that imposed upon bank stock, but also that the manner in which such other moneyed capital is employed brings it into direct and substantial competition with the business of national banks. A. similarity of investment use must be shown, for it is from the manner of use that competition arises, if at all, in the sense intended. First National Bank v. Hartford, supra, 273 U. S. 557, 558, 47 S. Ct. 462, 71 L. Ed. 767, 59 A. L. R. 1.
In the instant case, it is claimed that competition with national banks exists in tho manner in which building and loan associations lend money on mortgage and on collateral security, and receive deposits payable on demand, constructing and equipping their offices or counting rooms in semblance to those of banks; and in ilie manner in which mortgage companies and finance companies, organized under the Ohio law, loan money on mortgage of real estate, chattel mortgage, or collateral security, and discount or deal in commercial paper and installment contracts. In respect of building arid loan associations, it is said that discrimination exists in that tho owners of the stock of these associations are permitted to deduct their debts from tho face value of tho stock in returning it for taxation; in that the stock is not taxed at the source, and thus much of it is not returned by the owners and wholly escapes taxation; in that, if returned at all, it is returned at the owner’s domicile, and such domicile may be in a low tax rato district; and in that the accumulated surplus and undivided profits are not taxed at all. In respect of finance and mortgage companies, tho claim of discrimination is founded upon the fact that these companies are permitted to select corporate domiciles at tho time of incorporation, and that these teeh-nieal domiciles need not be, and frequently are not, where the company actually does business, but in districts having a very much lower tax rate; and upon the fact that, in making return upon their assets for taxation purposes, such companies are permitted to deduct the value of any nonlaxable securities they may hold (principally shown to be Liberty bonds).
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HICKENLOOPER, Circuit Judge.
This cause presents for determination the question whether Rev. St. § 5219- as amended (12 USCA § 548) has been violated in respect of the assessment of local taxes upon the shares of stoek of three national banks in the city of Columbus, Ohio, for the years 1926 and 192,7. Such banks are instrumentalities of the federal government, and neither their assets nor the shares of their capital stoek may be subjected to property taxes except by and with the consent of the fefleral government. The applicable condition upon which this consent is given is printed in the margin.1 The District Court held this condition to- have been breached and issued a permanent injunction. 45 F.(2d) 213. The defendant appeals.
The restriction .imposed upon the power of the státe to tax the shares of stock of a national bank is concerned only with that part of moneyed capital in the hands of individual citizens of the state which comes “into competition with the business of national banks.” Its main purpose is to prevent “an unequal and unfriendly competition with national banks, by favoring shareholders in state banks or individuals interested in private banking or engaged in operations and investments normally common to the business of banking.” First National Bank v. Hartford, 273 U. S. 548, 558, 47 S. Ct. 462, 71 L. Ed. 767, 59 A. L. R. 1; First National Bank v. Anderson, 269 U. S. 341, 347, 348, 46 S. Ct. 135, 138, 70 L. Ed. 295; Des Moines National Bank v. Fairweather, 263 U. S. 103, 116, 44 S. Ct. 23, 68 L. Ed. 191; Mercantile Nat. Bank v. New York, 121 U. S. 138, 155, 7 S. Ct. 826, 30 L. Ed. 895. Obviously this discrimination may be practiced as well by applying unequal and discriminatory rules for [481] the valuation of property (Des Moines National Bank v. Fairweather, supra.; Whitbeck v. Mercantile National Bank, 127 U. S. 193, 198, 8 S. Ct. 1121, 32 L. Ed. 118; Now York v. Weaver, 100 U. S. 539, 545, 25 L. Ed. 705), as by taxing tho shares of stock of national banks at higher rates than are applied to oilier moneyed capital, as in Minnesota v. First National Bank, 273 U. S. 561, 47 S. Ct. 468, 71 L. Ed. 774; First National Bank v. Anderson, supra, and other eases where the discrimination was the indirect outgrowth of a. general change in the system of taxation of the state from that of ad valorem taxes to one of an income tax; but before the tax upon the shares of stock of a national bank inay be held invalid it must appear1 not only that oilier moneyed capita,!, within the definition uniformly adopted by the 8 up ¡eme Court, is favored by a lighter burden of taxation than that imposed upon bank stock, but also that the manner in which such other moneyed capital is employed brings it into direct and substantial competition with the business of national banks. A. similarity of investment use must be shown, for it is from the manner of use that competition arises, if at all, in the sense intended. First National Bank v. Hartford, supra, 273 U. S. 557, 558, 47 S. Ct. 462, 71 L. Ed. 767, 59 A. L. R. 1.
In the instant case, it is claimed that competition with national banks exists in tho manner in which building and loan associations lend money on mortgage and on collateral security, and receive deposits payable on demand, constructing and equipping their offices or counting rooms in semblance to those of banks; and in ilie manner in which mortgage companies and finance companies, organized under the Ohio law, loan money on mortgage of real estate, chattel mortgage, or collateral security, and discount or deal in commercial paper and installment contracts. In respect of building arid loan associations, it is said that discrimination exists in that tho owners of the stock of these associations are permitted to deduct their debts from tho face value of tho stock in returning it for taxation; in that the stock is not taxed at the source, and thus much of it is not returned by the owners and wholly escapes taxation; in that, if returned at all, it is returned at the owner’s domicile, and such domicile may be in a low tax rato district; and in that the accumulated surplus and undivided profits are not taxed at all. In respect of finance and mortgage companies, tho claim of discrimination is founded upon the fact that these companies are permitted to select corporate domiciles at tho time of incorporation, and that these teeh-nieal domiciles need not be, and frequently are not, where the company actually does business, but in districts having a very much lower tax rate; and upon the fact that, in making return upon their assets for taxation purposes, such companies are permitted to deduct the value of any nonlaxable securities they may hold (principally shown to be Liberty bonds).
As to Building Associations: The tax laws of Ohio, in practically the same form as those with which we are here concerned, were held not to be discriminatory as against the owners of shares in national banks in First National Bank v. Chapman, 173 U.S. 205, 213, 19 S.Ct. 407, 43 L.Ed. 669. This case recognizes and reaffirms so much of the doctrine of Mercantile Nat. Bank v. Now York, supra, as holds that savings banks do not come into competition with national banks, and justifies the exemption of the moneyed capital in the possession of savings banks, including de^posits, upon the ground of a sound public policy to promote an accumulation of savings by the industrious and thrifty. Tho fundamental distinction between tho generally noncommercial purpose of the savings bank and the distinctly commercial character of national banks was recognized. In People of State of New York v. Commissioners, 4 Wall. 244, 18 L. Ed. 344, the same principle was applied in regard to insurance companies, which admittedly employ moneyed capital in much the same way as national banks, in the purchase of investments, in the making of loans upon collateral security or that of the reserve value of the policies of insurance, and upon mortgage of real estate-, and the like; and in Mercantile National Bank v. Hubbard (C. C.) 98 F. 465, tho identical doctrine war, applied to Ohio building associations by Air. Chief Justice Ta.£t, then Circuit Judge. Judge Taft there says (page 471 of 98 F.): “It seems to me that building associations are certainly not to be differentiated in their purpose or object, or practical effect, from, savings banks, and that the capital invested in them, though subject to a somewhat different rule of taxation, cannot bo regarded as moneyed capital in competition with the moneyed capital in national banks, any more than is capital invested in savings banks;” nor, we might add, from that invested in or possessed by insurance companies. This conclusion seems implicit in the very nature of the building association. The case was later affirmed by tlio Supreme Court. Sub nomine Lander v. Mercantile Nat. Bank, 186 U. S. 458, 22 S. Ct. 998, 46 L. Ed. 1247.
[482] It is insisted, however, that the present day building’ association is a very different type of institution from the “small, neighborhood, mutual associations of Judge Taft’s time,” and emphasis is laid upon the construction of offices in similitude to those of banks, the competition for deposits, the payment of deposits on demand, and the making of loans izpon collateral security. We do not think that the general nature of the business of building associations has so far changed as to make the law established by the above-cited eases inapplicable. Compare United States v. Cambridge Loan & Bldg. Co., 278 U. S. 55, 49 S. Ct. 39, 73 L. Ed. 180. The chief purpose of these institutions is still “to encourage the building of small houses by poor people, and the saving from their earnings, week by week, of an amount sufficient to pay the mortgage debts incurred in the purchase of the land and the construction of the house.” Mercantile National Bank v. Hubbard, supra (C. C.) 98 F. 465, 471. Practically all loans axe of the amortized type in which payment is spread over a period of from ten to twelve years. National banks perhaps might, but as a matter of fact do not, and in the interest of good banking should not, invest their funds generally in this manner. The two types of institutions have essentially different characteristics; the one is purely commercial in character, in which the assets must be kept liquid; the other is sui generis, noncommercial, and without a comparable need for liquid assets. The one is founded and conducted upon banking principles; the other was created in answer to a need which the banks could not and did not satisfy, and in furtherance of a wholesome public policy to promote building, especially the building of homes, and to develop the habit of thrift.
It is quite true that national banks, subject to certain restrictions, are now permitted to loan money upon the security of real estate mortgages, and that the plaintiffs below had taken advantage of this privilege. It is also true that building associations have invested some of their funds in Liberty bonds, and, to a very limited extent, may have made a few investments of idle capital in collateral loans or so-called “straight” mortgages. But we cannot concede that even as to these investments the building associations axe in substantial competition with national banks, or that, as claimed by plaintiffs below, the mere facts that money is loaned by building associations upon promissory notes, at interest and to be repaid in money, and that national banks take the ownership of real estate into consideration in passing upon the credit standing of borrowers, necessarily bring the two classes of institutions into competition. In the broad economic sense this may be so> but it was equally so when People of State of New York v. Commissioners, Mercantile Nat. Bank v. New York, First National Bank of Wellington v. Chapman, and Mercantile National Bank v. Hubbard (Lander v. Mercantile Nat. Bank) were decided. In those eases the fundamental and substantial differences between commercial institutions, such as national banks, and institutions of the insurance company, savings bank, and building association types, were the real bases of the finding of want of competition; and our decision of the present issue is founded upon a recognition of these same differences. Compare, also, Georgetown National Bank v. McFarland, 273 U. S. 568, 47 S. Ct. 467, 7 L. Ed. 779.
The scheme of taxation as it existed in Ohio in 1926 and 1927 (it has now been supplanted by an entirely different system) was fair to national banks and did not discriminate, in any broad conception of its application, in favor of other moneyed capital coming into direct competition with the business of such banks; and we do not think that a possible specific exception or two, in obvious departure from the accepted and general rule governing the business of the building association, should be held to nullify the clear intent of Congress, that national banks should bear their fair proportion of the tax burden, or to effect a virtual exemption of all national banks from taxation. Compare Amoskeag Savings Bank v. Purdy, 231 U. S. 373, 34 S. Ct. 114, 58 L. Ed. 274. We do not feel that the authority of the earlier cases above cited has been weakened by those later decisions invalidating taxes levied upon national banks, at different and actually higher rates than those imposed upon all other moneyed capital admittedly in competition with the banks; or that different rules have been adopted by the Supreme Court for determining what . constitutes substantial competition by the eases of First National Bank v. Anderson, supra; First National Bank v. Hartford, supra; Minnesota v. First National Bank, supra; and Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 52 S. Ct. 133, 76 L. Ed. 265.
As to the alleged “competition for deposits,” it is evident from the universal expressions of opinion by the Supreme Court that competition, in the sense intended, is limited to the employment of moneyed capital “substantially as in the loan and investment [483] features of banking.” Deposits constitute moneyed capital, but national banks aro not taxed upon their deposits any moro Iban aro savings banks and building associations; and we aw here primarily concerned only with what is done with such moneyed capital after it is secured, not with competition to obtain it. There is clearly no distinction in law between the competition for deposits as between national banks and savings banks, and the same competition as between national banks and building associations. Thus Mercantile Nat. Bank v. New York, supra, seems directly in point on this issue.
As to Finance and Mortgage Companies: What we have said as to building associations applies with equal force, wo think, to finance and mortgage companies. These institutions were the outgrowth of a need created largely by installment selling and low credit rating of purchasers in the mercantile world; a need which could not be satisfied by national banks. The premiums exacted, arid the tremendous, though legally permissible, interest charges, discounts, etc., but relied; the attending risks and the element of nuisance in collection. No one who had sufficient credit to borrow from a. national bank would submit to the exorbitant charges imposed. On the other hand, a. national bank would not purchase installment contracts or’ under!¡ike the collection of the weekly or monthly payments upon an automobile, refrigerator, or set of furniture. Neither would a national bank lend upon second.mortgage of real estate or chattel mortgage of these now so-called necessities, nor extend credit to the ordinary purchaser who must buy on the installment plan. A national bank may, and doubtless often does, extend credit to a mercantile corporation upon security, in part at least, of these installment contracts or “automobile paper”; or a national bank may, and doubtless often does, lend money to the stronger finance and mortgage companies upon like security. But these investments, whether exceptional or usual, are not in competition but, in the latter ease, at least, in co-operation with the finance and investment companies. Competition requires a similarity in the nature of the transaction, and this is here lacking.
The evidence discloses the fact that some of the mortgage companies are engaged almost exclusively in procuring mortgages of the better type which are then sold to insurance companies or other financial institutions. Others do this to a greater’ or less extent. In so doing we regard these mortgage companies as in a very true sense the agencies of such other institutions in making the loans, and if such institutions are not in competition with national banks, and certainly insurance companies are not, we do not regard this established practice whereby they secure their loan investments as being in such competition. Premiums, discounts, and higher interest charges also enter into these transactions, else there would bo no profit for the mortgage company. The same radical differences in nature and business practice exist as regards these mortgage and finance companies as was noticed in respect of building associations, and it is only by holding that anything which is a “loan,” and which takes the question of credit anywise into consideration, whether due to an established business, net worth, or the value of the collateral pledged, is necessarily a transaction in competition with national banks, which also make loans or advance money upon credit, that we can find the existence of competition.
But were the moneyed capital of finance and mortgage companies properly regarded as in competition with national banks, it would still seem that no discrimination in taxation exists as against them. The discrimination urged by appellees is: (1) That these mortgage and finance companies are permitted to deduct the value of their holdings of Liberty bonds or other nontaxables in making returns for taxation; and (2) that they truly and do select their corporate domiciles in low tax rate districts. The decision in Des Moines National Bank v. Fairweather, 263 U. S. 303, 117, 44 S. Ct. 23, 68 L. Ed. 391, is sufficient answer to the first' contention, although, had the same distinction been applied to state banks, the law could not be upheld. Montana Nat. Bank v. Yellowstone County of Montana, 276 U. S. 499, 48 S. Ct. 331, 72 L. Ed. 673. The second contention made is more novel, and deserves special consideration.
The statutes of Ohio governing the granting of charters to corporations for profit require that the articles of incorporation shall state “the place where it is to be located, or its principal business transacted.” General Code, § 8625. Where the corporation owns real estate in Ohio, the valuation of personal property to be taxed “shall be apportioned by the [county] auditor to such cities, villages, townships, or taxing districts, pro rata, in proportion to the value of the real estate and fixed property included in the return.” General Code § 5405-. But when no such real estate is owned, the place designated in the articles of incorporation as its location or principal place of business is regarded as its [484] corporate domicile, and tax returns are to be filed there, regardless of the fact that business may be transacted elsewhere. State ex rel. v. Zangerle, 117 Ohio St. 436, 159 N. E. 823.
While the practical operation of the statutes of Ohio, as construed by the highest court of that state, permits any domestic corporation to acquire a legal domicile for taxation purposes in a taxing district other than that of the location of its principal office, this right has been existent from the very earliest time. It was recognized by the Supreme Court of Ohio at least as early as- 1882 (Pelton v. Transportation Co., 37 Ohio St. 456), and is but a variation of the right of every individual to select his own domicile, or the right of incorporators to incorporate under the laws of any state. Rev. St. § 5219, as amended and before, restricts taxation of the shares of stock of a national bank to “the taxing district where the association is located and not elsewhere,” and thus makes that place the un-variable situs for taxation of national bank shares. Otherwise expressed, it may be said that this provision also creates a legal domicile of the shareholder for the taxation of his shares under the doctrine of mobilia sequ-untur personam. It is a-recognition of the right of the sovereign to lawfully provide for the creation of such domicile, and we think that the fact that tax! rates differ in different localities within the state must also have been known to Congress.
When the above facts are taken into consideration, we think that the restrictions upon the right, of the state to tax national bank stock at a rate not greater than is assessed upon other moneyed capital in the hands of individual citizens can only be taken to apply to the rates assessed against both when lawfully domeiled in the same taxing district. So fax as we know, the point has never been raised or decided before, and the fact that the individual has always been allowed to select his own domicile, and the many years during which this right has been accorded to Ohio corporations, make the lack of adjudication of the point strongly persuasive of its lack of merit in the opinion of the bench and bar. The situation is omnipresent, at least as to individuals, in every state of the Union. We do not regard it as a discrimination within the intent of section 5219, as amended.
Por the reasons above stated, we are of the opinion that the injunction restraining the collection of the taxes was improvidently issued, and the decree of the District Court is accordingly reversed, and the cause is remanded for further -proceedings consistent with this opinion. ■ -