TAFT, Circuit Judge
(after stating the facts as above). I am not able elaborately to state the reasons for my conclusions in this case. I think it better, in view of the fact that the case will certainly be appealed, that I should give a very summary statement of them.
Upon the first issue, — whether the action of the state board of equalization was invalid for want of notice, — I do not find it necessary to pass. The action of the state board was embodied in a report to the county auditor, and by Mm placed upon the duplicate, so that it now appears on the face of the duplicate as a lawful warrant for the collection of the (ax.
This proceeding is a hill in equity to enjoin the collection of the 1ax on the ground that it was assessed without due notice to the complainant. If the tax assessed is no greater than ought to have been assessed, then the complainant is not in a position to ask the intervention of a court of equity, because, however irregular the action of the state board may have been, if the complainant cannot make it clear that by a hearing upon notice it would have been entitled to an assessment less than that which was made, the bill must be dismissed. The master finds that the actual market value of the stock is §128 per share. There are 10,000 shares of the stock, making a total valuation of §1,280,000. Bixty per cent, of this valuation would he $768,000. Deducting the assessed value of the real estate would leave a valuation of $650,630. The assessment of the state hoard is $642,000. It will be seen that the assessment of the state hoard of equalization is certainly only 60 per cent, of the actual value of the shares of stock in the market. The finding of the master is that there is nothing in the evidence to show whether the shares of incorporated banks in the counties of the state outside of Cuyahoga county were valued for taxation by the auditors at a higher [470]*470or lower percentage, compared with, the true value of their stocks, than were the banks in Cuyahoga county; and hence the master is unable to report or find whether there was any unjust discrimination as between other incorporated banks and the complainant bank, and against the complainant bank. The other finding of the master, as to the percentage of the aggregate capital stock, surplus, and undivided profits assessed for taxable valuation by the state board of equalization, of all incorporated banks, and of all national banks and national bank shares outside of Cuyahoga county, therefore formed no basis for concluding what relation the assessed percentage of the aggregate capital the surplus and.the undivided profits had to the market and actual value of the stock. 1 am unable to find, therefore, in the grounds upon which the master proceeded, any predicate for the assumption that the other banks in the state were taxed at any less than 60 per cent, of the actual market values of their shares; and, if they were not so taxed, then there is no ground for claiming that there was any discrimination in the action of the state board of equalization in assessing the value at 60 per cent, of its actual value. There is no better evidence of the actual value of bank shares than the market value. It seems to me that the findings of the master upon this point, therefore, are inconsistent; and the exception to them must be sustained. In that view, it becomes unimportant to decide, as already stated, whether or not the notice of the action by the state board of equalization was sufficient.
The next question is whether the operation of the statutory definition of “credits” to be returned for taxation in Ohio operates to discriminate in favor of other moneyed capital in the state against national bank shares. Upon this point the decision in the case of Bank v. Chapman, 173 U. S. 205, 19 Sup. Ct. 407, 43 L. Ed. 669, leaves no doubt. In that case it was held that the term “moneyed capital,” as used in the federal statute, does not include eapitai tvhich does not come into competition with the business of national banks, and that exemptions from taxation, however large, such as deposits in savings banks, or moneys belonging to charitable institutions, which are exempted from reasons of public policy, and not as an unfriendly discrimination against investments in national bank shares, cannot be regarded as forbidden by the federal statute. The court then proceeded:
“With no purpose to discriminate against the holders of shares in national hanks, and with the taxation of the shareholders in the two classes of hanks — ■ state and national — precisely the same, the question is whether this system of taxation in Ohio, in its practical operation, does materially discriminate against the national hank shareholder in the assessment upon his hank shares.”
The court then proceeded to treat the question of such discrimination as a question of fact, to be determined by the evidence, and reference was made to the report of the auditor to show what the total credits upon which taxation was laid, after deducting the debts allowed, were. It was pointed out that the deductions which might be made included deductions for many other things than what would be strictly moneyed capital, within the meaning of section 5219, and that there was nothing in the evidence then before the court [471]*471to enable it to say how much of these deductions was moneyed capital, within the meaning of that section. I do not find that there was anything more of substance before the master than there was before the supreme court upon this issue of fact. There is proof of the capita! in savings banks, and also of the capital invested in building and loan associations; but, under the decision of Mercantile Hank v. City of New York, 121 U. S. 138, 7 Sup. Ct. 836, 30 L. Ed. 893, capital invested in savings banks cannot be regarded as moneyed capital, within the meaning of section 5219, exemption of which from taxation can constitute a discrimination within the inhibition of that section. 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 be regarded as moneyed capital in competition with the moneyed capital in national hanks, any more than is capital invested in savings banks. The chief object of building associations is 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. The mere fact that every shareholder in a building association need not be a borrower cannot, I think, change the effect of the general purpose of the building association law. The general result of the evidence is no more satisfactory as showing what amount of discrimination, if any, there is by reason of this definition of “credits” in the Ohio statute of taxation, than it was in the case of Bank v. Chapman. For this reason I must conclude, as Ihe master did, that the aver-ments of the bill as to the discrimination, arising from the operation of this definition of “credits,” against moneyed capital, is not such as to justify any action by the court in the complainant’s favor.
There remains (o be considered the question arising under the claim of former adjudication made in ihe bill.
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TAFT, Circuit Judge
(after stating the facts as above). I am not able elaborately to state the reasons for my conclusions in this case. I think it better, in view of the fact that the case will certainly be appealed, that I should give a very summary statement of them.
Upon the first issue, — whether the action of the state board of equalization was invalid for want of notice, — I do not find it necessary to pass. The action of the state board was embodied in a report to the county auditor, and by Mm placed upon the duplicate, so that it now appears on the face of the duplicate as a lawful warrant for the collection of the (ax.
This proceeding is a hill in equity to enjoin the collection of the 1ax on the ground that it was assessed without due notice to the complainant. If the tax assessed is no greater than ought to have been assessed, then the complainant is not in a position to ask the intervention of a court of equity, because, however irregular the action of the state board may have been, if the complainant cannot make it clear that by a hearing upon notice it would have been entitled to an assessment less than that which was made, the bill must be dismissed. The master finds that the actual market value of the stock is §128 per share. There are 10,000 shares of the stock, making a total valuation of §1,280,000. Bixty per cent, of this valuation would he $768,000. Deducting the assessed value of the real estate would leave a valuation of $650,630. The assessment of the state hoard is $642,000. It will be seen that the assessment of the state hoard of equalization is certainly only 60 per cent, of the actual value of the shares of stock in the market. The finding of the master is that there is nothing in the evidence to show whether the shares of incorporated banks in the counties of the state outside of Cuyahoga county were valued for taxation by the auditors at a higher [470]*470or lower percentage, compared with, the true value of their stocks, than were the banks in Cuyahoga county; and hence the master is unable to report or find whether there was any unjust discrimination as between other incorporated banks and the complainant bank, and against the complainant bank. The other finding of the master, as to the percentage of the aggregate capital stock, surplus, and undivided profits assessed for taxable valuation by the state board of equalization, of all incorporated banks, and of all national banks and national bank shares outside of Cuyahoga county, therefore formed no basis for concluding what relation the assessed percentage of the aggregate capital the surplus and.the undivided profits had to the market and actual value of the stock. 1 am unable to find, therefore, in the grounds upon which the master proceeded, any predicate for the assumption that the other banks in the state were taxed at any less than 60 per cent, of the actual market values of their shares; and, if they were not so taxed, then there is no ground for claiming that there was any discrimination in the action of the state board of equalization in assessing the value at 60 per cent, of its actual value. There is no better evidence of the actual value of bank shares than the market value. It seems to me that the findings of the master upon this point, therefore, are inconsistent; and the exception to them must be sustained. In that view, it becomes unimportant to decide, as already stated, whether or not the notice of the action by the state board of equalization was sufficient.
The next question is whether the operation of the statutory definition of “credits” to be returned for taxation in Ohio operates to discriminate in favor of other moneyed capital in the state against national bank shares. Upon this point the decision in the case of Bank v. Chapman, 173 U. S. 205, 19 Sup. Ct. 407, 43 L. Ed. 669, leaves no doubt. In that case it was held that the term “moneyed capital,” as used in the federal statute, does not include eapitai tvhich does not come into competition with the business of national banks, and that exemptions from taxation, however large, such as deposits in savings banks, or moneys belonging to charitable institutions, which are exempted from reasons of public policy, and not as an unfriendly discrimination against investments in national bank shares, cannot be regarded as forbidden by the federal statute. The court then proceeded:
“With no purpose to discriminate against the holders of shares in national hanks, and with the taxation of the shareholders in the two classes of hanks — ■ state and national — precisely the same, the question is whether this system of taxation in Ohio, in its practical operation, does materially discriminate against the national hank shareholder in the assessment upon his hank shares.”
The court then proceeded to treat the question of such discrimination as a question of fact, to be determined by the evidence, and reference was made to the report of the auditor to show what the total credits upon which taxation was laid, after deducting the debts allowed, were. It was pointed out that the deductions which might be made included deductions for many other things than what would be strictly moneyed capital, within the meaning of section 5219, and that there was nothing in the evidence then before the court [471]*471to enable it to say how much of these deductions was moneyed capital, within the meaning of that section. I do not find that there was anything more of substance before the master than there was before the supreme court upon this issue of fact. There is proof of the capita! in savings banks, and also of the capital invested in building and loan associations; but, under the decision of Mercantile Hank v. City of New York, 121 U. S. 138, 7 Sup. Ct. 836, 30 L. Ed. 893, capital invested in savings banks cannot be regarded as moneyed capital, within the meaning of section 5219, exemption of which from taxation can constitute a discrimination within the inhibition of that section. 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 be regarded as moneyed capital in competition with the moneyed capital in national hanks, any more than is capital invested in savings banks. The chief object of building associations is 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. The mere fact that every shareholder in a building association need not be a borrower cannot, I think, change the effect of the general purpose of the building association law. The general result of the evidence is no more satisfactory as showing what amount of discrimination, if any, there is by reason of this definition of “credits” in the Ohio statute of taxation, than it was in the case of Bank v. Chapman. For this reason I must conclude, as Ihe master did, that the aver-ments of the bill as to the discrimination, arising from the operation of this definition of “credits,” against moneyed capital, is not such as to justify any action by the court in the complainant’s favor.
There remains (o be considered the question arising under the claim of former adjudication made in ihe bill. Upon the argument, and before I bad made a close examination of the bill, my impression was that upon this claim of former adjudication the complainant must succeed. It seemed to me. that the adjudication in the former case was a mere adjudication of the necessary operation of the statute of Ohio, as a matter of law, to discriminate against national banks, and therefore that, that question having been in judgment between the same parties, it must receive the same adjudication here. Looking into the bill, however, in the former case, and after an examination of the case of Bank v. Chapman, I find that, in order to support the aver-ments of the bill, it was necessary in that case for the complainant to rely, not only upon the statute of Ohio defining “credits,” but also on its practical operation in exempting moneyed capital in the hands of individuals in Ohio from taxation. The practical operation of a law of that character to show how much, if any, discrimination there is, is a question of fact to be determined upon the evidence. A large amount' of evidence was taken in the former suit, and the court, in its decree, found the averments of fact as to the practical operation of the law of Ohio, in the bill, to be fully sustained. In other words, the court found the fact to be that for the years then involved the [472]*472statute of Ohio, as enacted, operated to exempt so large an amount of the moneyed capital in the hands of individuals in that state, as to discriminate against the holders of the complainant’s shares, and result in the taxation of the stock at a much greater rate than was assessed upon other moneyed capital in the hands of individual citizens of Ohio. The adjudication, therefore, upon which the complainant relies, is an adjudication, not of law, but of fact, — not of the fact at issue in the present case, but of the fact as to the practical operation of the law at the time of that adjudication, to wit, in 1887, in 1893, and in 1894. In this aspect, the fact as to the practical operation of the law in 189'6 may be different from that in 1887 and the other years. A finding of a condition in 1887 does not conclusively establish the existence of the same conditions in 1896 and 1897. For this reason, I cannot sustain the contention made on behalf of the complainant, that the former adjudication conclusively entitles the complainant to the same relief as that which was granted it in the Whitbeck Case. The exceptions to the master’s report on this ground are therefore overruled. The result is that the preliminary injunction must be dissolved, and the bill dismissed at complainant’s costs. The same order must be made in the other cases which it is agreed depend on this.