#### The State *v.*The Bank of Newbern.

Stock standing on the books of the Bank of Newbern, in the name of the President and Directors of the Literary fund, is stock held by the state, within the meaning of the act of 1814, *(Rev. c.*870 s. 11) extending the charter of that bank ¡ and therefore, not subjectto taxation.

A difference of opi nion having arisen between the Treasurer and the Bank of Newbern, as to the obligation of the bank to pay the tax of one per cent, upon share» w *373the bank held by the President and Directors of the literary fund ; the bank contending that the stock held by the latter, was, to all intents, stock held by the State, within the meaning of the eleventh section of the act of 1814, *(Rev, c.*870): The question was submitted to Judge Norwood at Wake, on the last Spring circuit, in the shape of a case agreed. His Honor holding that, the stock of the literary fund was the stock of the State, gave judgment accordingly, and the Attorney General in behalf of the State, appealed.

The'case was submitted, without argument, by the *Attorney General*for the State, and *Gaston*for the Bank.

Ruffin, Judge

There is but a single question submitted in this case, and upon that, no doubt is entertained by the court. No tax can be levied on or for any stock holden by the state,. by the express terms of the 11th section of the act of 1814, which imposes the tax of one per cent, on the stockholders in the Banks of Newborn and Cape Fear. The remaining enquiry is, whether this stock, which stands in the name of the President and Directors of the literary fund, is stock held by the State, within the meaning of the charter. We think it is. The act of 1825 was passed, to create a fund for the establishment of common schools. The object is one of general and public concern, and is to be effected by the general and public treasure. It is the legislative will, that the income arising from certain sources of revenue, shall be set aside for that purpose, until it shall, in the opinion of the Legislature, have sufficiently accumulated for division and particular appropriation amongst the several counties. To facilitate the keeping of the accounts of it as a seperate fund, and to promote its accumulation, certain of the high officers of the state, are appointed trustees of it, with directions to invest it from time to time in stock ; and to that end are endued with corporate powers. But it is still a public fund, received by the treasurer and accounted for by him ; it is under the control of the Legislature, am) may be by their will, increased, diminished, divested, or annihilated. No pri*374vate rights have attached to the fund, or vested under the law creating it, or any one subsequently passed. It is to all intents the common property of all the citizens of the State ; and therefore, belongs to, and is held by the State. It was not the legislative design to vest it in a corporation for private uses ; but simply to distinguish it from other parts of the public property, as ultimately designed for a special public use— That this might be conveniently done, it received the designation given to it in the act. But that does not change its character oj* ownership. If it be not the property of the state whose is it ? If by the act of 1814, the tax is on each individual stockholder, to be paid by the President or Cashier, out of the funds arising from, or constituting his share or shares, it is plainly absurd, to require a particular portion of the public property, to contribute' to the fund for general expenditure. If, on the other hand, the tax is to be paid by the corporation out of the aggregate profits or funds, and the amount only ascertained by the number of private stockholders, that amount must be diminished by one per cent, per annum, upon each of these shares, which are not private property.— It is not necessary to decide which is the true construction of the charter on this point; for upon either, the judgment ought to be affirmed.

Pee Cueiam. — Judgment aeeiemed.