499 Opinion of the Court. Bank v. Rogers, 73 Mont. 210. In that case the requirement of the statutes, so far as it applied to state banks, was stated by the court as follows (p. 217): This state had the option to tax the shares of stock in state banks to the individual shareholders, or to tax the property of such banks to the banks themselves. It could not tax both at the same time. (Sec. 17, Art. XII, Constitution of Montana.) If it had chosen the first alternative, it might then have assessed the shares at their full cash value without reference to the character of the securities in which the bank's funds were invested (Van Allen v. Assessors, 3 Wall. 573, 18 L. Ed. 229 [see, also, Rose's U. S. Notes]); but it chose to tax the property of the banks, and must abide the consequences." The taxing officials, conforming to this construction of the state law, as they were bound to do, while they assessed, levied and collected the tax now under review, laid no tax whatever upon shares of state banking corporations, although, as the record shows, these shares had a very large taxable value over and above the value of the taxable property of the banks, due to the ownership by the banks of tax-exempt federal securities. That this resulted in a substantial discrimination against plaintiff in error within the meaning of the restriction contained in 5219 does not admit of doubt. Van Allen v. Assessors, 3 Wall. 573, 581; Mercantile Bank v. New York, 121 U. S. 138, 148, 152; Owensboro National Bank v. Owensboro, 173 U. S. 664, 677. Nevertheless, it is contended for the defendants in error that, since the exemption from taxation of the federal securities in the hands of the state banks is created by federal statute, the discrimination is one which the state could not avoid. It is said that it was so decided in Des Moines Bank v. Fairweather, 263 U. S. 103. But this view of that decision is entirely erroneous. The statutes of Iowa there under review expressly provide that shares Opinion of the Court. 276 U.S. of stock in national banks and state and savings banks and loan and trust companies located in the state shall be assessed to the individual stockholders; and shares of national banks and those of competing state corporations are put, for purposes of taxation, upon terms of exact equality. The provision of the Iowa statute which was assailed related to the assessment of capital employed by individual bankers (p. 105); and this Court held that the restriction of § 5219 was not violated because the state, perforce, allowed a deduction of federal securities in assessing the capital of such individual bankers; that the federal law made such securities exempt and the state merely respected the exemption. P. 117. The decision in no way affects the rule (Van Allen v. Assessors and other cases, supra) that in respect of the taxation of state corporate banks, the shares must be taxed as they are in the case of national banks, so far as necessary to prevent discrimination, and that, in neither case, does the exemption of federal securities apply in the taxation of such shares. It is true that the state supreme court in the present case expressly repudiated the construction theretofore put by it upon the state statutes in the Rogers case, supra, and, as already stated, adopted one to the exact contrary. But that does not cure the mischief which had been done under the earlier construction. That construction had already been acted upon by the taxing officials and the application thus made of the statutes had given rise to the present cause of action and an undoubted right to recover thereon. The statutes, as thus construed and applied to the concrete facts of the case, were invalid; and this is enough to justify the challenge here under consideration. Cudahy Co. v. Parramore, 263 U. S. 418, 422; Ward & Gow v. Krinsky, 259 U. S. 503, 510. Plaintiff in error cannot be deprived of its legal right to recover the amount of the tax unlawfully exacted of it by the later decision which, while repudiating the construction under which the unlawful exaction was made, leaves the monies thus exacted in the public treasury. But it is said that the taxing officers of the county, in view of the later decision, now have the power to tax the shares of state banks and thus bring about an equality. As to this it is unnecessary to say more than that it nowhere appears that these officers, if they possess the power, have undertaken to exercise it or that they have any intention of ever doing so. It will be soon enough to invite consideration of this purely speculative suggestion when, if ever, the taxing officials shall have put it into practical effect. Finally, it is urged that plaintiff in error may not maintain this action because of its failure to apply to the county board of equalization for an administrative remedy. We do not stop to inquire whether under any circumstances such remedy was open to the taxpayer, for the short answer is that the decision of the Supreme Court of Montana in the Rogers case would have rendered any such application utterly futile since the county board of equalization was powerless to grant any appropriate relief in the face of that conclusive decision. See Hills v. Exchange Bank, 105 U. S. 319, 321; Whitbeck v. Mercantile Bank, 127 U. S. 193, 199. Compare, First Natl. Bank v. Weld County, 264 U. S. 450, 454–455. Judgment reversed. DONNELLEY v. UNITED STATES. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 110. Argued November 22, 1927. Reargued January 19, 1928.— Decided April 9, 1928. 1. After certification of a question by the Circuit Court of Appeals, the entire record was ordered up. Plaintiff in error filed no state Argument for Donnelley. 276 U.S. ment of points or specification of errors to be relied on, nor any brief other than one filed after the certification, dealing with the question certified. Held that review would be confined to that question. Rule 25, Par. 2 (e), Par. 4; Rule 11, Par. 9. P. 511. 2. The general clause of § 29, Title II of the Prohibition Act providing that any person who "violates any of the provisions of this Title for which offense a special penalty is not prescribed, shall be fined for the first offense not more than $500" etc., applies to a prohibition director who, having knowledge that a person has possessed and transported intoxicating liquor contrary to the Act, violates his duty under § 2 by intentionally failing to report the case to the United States Attorney. P. 511. 3. The rule that penal statutes are to be strictly construed in favor of persons accused, is not violated by allowing the language to have its full meaning where that construction is in harmony with the context and supports the policy and purposes of the enactment. P. 512. 4. Public officers are not attended by any special presumption that general language in disciplinary measures does not extend to them. P. 516. District Court affirmed. REVIEW of a judgment of the District Court for the District of Nevada, sentencing Donnelley, a prohibition director, for wilful failure to report a violation of the Prohibition Act. The case came here first on a question certified by the Circuit Court of Appeals. The whole record was then ordered up. Mr. Frank H. Norcross, with whom Mr. Henry M. Hoyt was on the brief, for Donnelley. Section 2 was not intended to define or embrace a penal offense. An attempt to give it a penal character leads to absurd results. So construed, the Commissioner of Internal Revenue, his assistants, agents and inspectors, are guilty of a misdemeanor if they fail to investigate and report any violation of the Act coming to, or which should have come to, their knowledge. A third dereliction would amount to a felony. So construed, it becomes 505 Argument for Donnelley. the duty of the Commissioner, his assistants, agents and inspectors, not only to investigate offenses in connection. with liquor violations, but each must investigate every other officer with whom he is associated and report him if such officer has failed so to investigate and report. The section is a purely administrative provision prescribing in the most general language, and not with the particularity required in penal provisions, the duty of administrative officers in investigating and reporting such violations of the Act as are by its terms made "offenses." If § 2 is penal, then Congress intended to take all discretion from officers entrusted with enforcement, and they cannot, as has been the practice, without themselves becoming violators, determine what class or character of violators it is most advantageous, for the purpose of real enforcement, to investigate and report, nor determine in any case under investigation when or whether evidence has been secured sufficient to justify prosecution. Section 38 of the Prohibition Act provides for three classes of officers, two of which are specifically designated as "executive officers" and as "agents and inspectors in the field service," and the third class includes experts, clerical assistants, etc. By the very terms of the statute, executive officers have nothing to do with the real work of investigating officers. By the provisions of §§ 1800 and 1810 of Article XVIII of the Regulations prescribed by the Commissioner of Internal Revenue, the Director must maintain an office not to be closed within certain prescribed hours and must be in attendance except when on leave or temporary absence. By the terms of the Regulations, the Director cannot be an investigating officer in the strict or practical sense. Upon the other hand, it is equally as manifest that investigating or field officers are not supposed to make reports to the United States Attorneys of the re |