EARL, Ch. J.

This is a proceeding by certiorari to review an assessment of the relator, a Connecticut corporation, on shares of stock owned by it in certain banks located in the city of New York. There is no dispute about the ownership by it of the stock. It claims exemption from the assessment mainly because it is a savings bank, and also because, if allowed the proper deductions for its liabilities, nothing would remain for taxation.

It cannot claim exemption here on account of any laws of the state of Connecticut, as they have no operation here. We will assume that it is entitled to all the exemptions and regulations of the assessment and tax laws of this state, and that it must be treated precisely as if it were a domestic corporation, and yet we reach the conclusion that the assessment complained of was properly made.

The general rule is that all property within this state is liable to taxation, and when a claim of exemption is made, it must clearly appear, and the party claiming it must be able to point to some provision of law plainly giving the exemption.

It is provided in section 1, title 1, chapter 13, part 1 of the Revised Statutes, as follows: "All lands and all personal estate within this state, whether owned by individuals or by corporations, shall be liable to taxation, subject to the exemptions hereinafter specified." And among the exemptions after wards specified is "the personal estate of every incorporated company not made liable to taxation on its capital in the fourth title of this chapter." In order to claim this exemption, a corporation must have a capital not liable to taxation as such, and so we decided in Catlin v. Trustees of Trinity College ( 113 N.Y. 133). There we held that the words "incorporated company" were intended to designate only such business and stock corporations as, by chapter 13, are, under special circumstances, exempted from taxation on their capital, and do not embrace corporations not having a capital. The reasoning by which that conclusion was reached need not be repeated here. Nothing is left to be said by the opinion there pronounced. Therefore, looking at the Revised Statutes alone, there is nothing upon which the relator can base the exemption claimed.

The Revised Statutes neither exempted the bank nor the depositors therein. But there could not be double taxation. If that had been attempted, some way would have been found to defeat it, as that would be against public policy, the purpose of the laws and natural justice. While the legislature may constitutionally impose double taxation, its purpose to do so can never be inferred, but must plainly appear. The bank is in some sense a trustee of the depositors, and takes their money and invests it, and pays them the net interest which it earns, and it cannot be supposed that there is any system of laws under which taxation can, at the same time, be imposed upon a trustee and the beneficiary in respect of the same property. ( Provident Savings Institute v. Gardiner, 4 R.I. 484; Nashua Savings Bank v. City of Nashua, 46 N.H. 389, 398.)

The system for the taxation of savings banks and their depositors under the Revised Statutes was undoubtedly imperfect. It may be that either the bank or the depositors could be taxed and undoubtedly it would have been most appropriate to select the bank for taxation.

Thus the law remained until 1857, when the act chapter 456, "in relation to the assessment of taxes on incorporated companies," was passed, the fourth section of which is as follows: "The deposits in any bank for savings which are due to depositors and the accumulations in any life insurance company organized under the laws of this state, so far as the said accumulations are held for the exclusive benefit of the assured, shall not be liable to taxation other than the real estate and stocks which may be owned by such bank or company and which are now liable to taxation under the laws of the state." Now what does that section mean and what did the legislature intend to accomplish by it? The whole act deals with "incorporated companies;" so the title indicates. The section plainly intended either to exempt depositors from taxation upon their deposits or to exempt the banks from taxation upon such deposits. We think the legislature found the confusion existing in the laws as to the taxation of such deposits, and that the taxation might be imposed upon the banks where they were located, or upon the depositors where they resided, neither the banks nor the depositors having any exemption, and it intended to exempt the banks from taxation upon such deposits to which they were then liable. That it was providing for the exemption of the banks as to the deposits is made probable by the circumstances that in the same section consisting of but one sentence it provided for the exemption of life insurance companies from taxation upon their accumulations held for the benefit of persons insured, and that the real estate and certain stocks owned by the corporations are expressly left liable to taxation as before. There is no language indicating that it was meant to exempt the depositors from taxation upon their deposits. If, as claimed by the relator, the banks are exempted from taxation under the Revised Statutes and as claimed by others the depositors are exempted from taxation on their deposits under this section, then an increasing amount of personal property in this state, now amounting to more than $600,000,000, will entirely escape taxation. There is certainly no public policy which dictates the entire exemption of this enormous amount of property, and the intention to exempt it, before the exemption can be allowed, should be found plainly expressed in some statute, and we do not find it. The depositors are taxable upon their deposits as they are upon other personal property, and the banks are exempt to the extent specified in the section.

The exemption was only to the extent of the deposits due to depositors. The surplus held by savings banks not being due to depositors, and therefore not taxable against them, was left where it was before, liable to taxation against the banks. But it was found that the banks escaped taxation upon the surplus by investing it in government bonds which were exempt from taxation, and hence in 1866 the legislature, in section 7 of the act chapter 761, provided for the taxation of the banks on their "privileges and franchises," to an amount not exceeding the gross sum of their surplus. In 1867 this section was amended so as to allow a deduction from the surplus of the amount thereof invested in United States securities. (Chapter 861.) In 1875, by section 56 of chapter 371, the legislature repealed the acts of 1866 and 1867, and thus the law was again restored to the condition in which it was left by the act of 1857, and so the law remained until 1882 when by chapter 402 the act of 1875 was repealed. It may be that this repeal of the act of 1875 restored the acts of 1866 and 1867. It is, however, not now necessary to determine whether it did or not as those acts providing for the taxation of the privileges and franchises of savings banks manifestly could have no application to foreign savings banks.

No other statutes have come to our attention which bear upon the exemption of savings banks and their depositors from taxation, and our conclusion is that the only exemption which the banks can claim is under the act of 1857, and that that exempts only the deposits due to their depositors, and not their surplus, and that hence there is room for the operation of the provisions of law which impose taxation upon the shares of bank stock. Those provisions are found in section 5219 of the Revised Statutes of the United States, and in the laws of this state, section 312, chapter 12 of the act chapter 409 of the Laws of 1882. In the latter act it is provided that the stockholders in every bank, state or national, shall be assessed and taxed on the value of their shares of stock at the place where the bank is located; and that such shares shall be assessed like other taxable personal property owned by individuals and with like deductions. Section 312 is mandatory. It provides that the stockholders "shall be assessed and taxed." It may, at least plausibly if not well, be claimed that a corporation owning bank shares may be taxed upon them although generally exempt from taxation as to its other personal property. ( Bank of Redemption v. Boston, 125 U.S. 80.) But we need not go so far in this case, because if these shares are part of the surplus of this bank, and the proper deductions have been allowed, it has no ground of complaint. The assessors determined upon sufficient, and indeed undisputed, evidence that they were part of the surplus, and we cannot perceive how it can be well disputed that every deduction which the bank could properly claim was made. The assessors took the total value of all its assets, and from that deducted all its liabilities, and thus ascertained that it had a surplus of over $900,000. From this surplus they deducted all its property not taxable anywhere, all its property taxable elsewhere, all real estate and cash held by it, and thus reached a final surplus largely in excess of the assessment made against the bank. It is impossible to perceive what other deductions the assessors should have made, and the learned counsel for the bank has called to our attention no other.

But he claims that the bank was entitled to a deduction of its liabilities from the assessment as made. The bank was not entitled to the deduction of liabilities twice. When the assessors, in making an assessment of personal property, ascertain the amount of the owner's liabilities and make all the deductions on account thereof to which he is entitled, and assess him for the balance thus obtained, he cannot then again claim against the assessment thus made another deduction of his liabilities and thus entirely wipe out the assessment. Assessors may assess an owner for the whole amount of his personal property and then allow him deductions on account of his liabilities when he appears and claims it, or they may allow him the deductions when they make the assessment, and then he has no grievance to complain of.

Our conclusion, therefore, after a careful consideration of the learned and ingenious brief of the counsel for the bank, is that the assessment against it was properly made, and that it has no just ground to complain of the amount thereof, and the order appealed from should, therefore, be affirmed, with costs.

FINCH, J., concurs; ANDREWS, PECKHAM, GRAY, O'BRIEN and MAYNARD, JJ., concur in result on the ground that the shares of stock assessed were part of the bank's surplus, and they express no opinion as to the taxation of depositors on account of their deposits in savings banks.