or exclusive of the tax upon shares in the hands of stockholders, or inclusive of a tax upon either.1 Where a fixed sum is exacted as an annual charge by the legislature for the franchise without reference to capital stock, no succeeding legislature may impose a further tax upon the franchise without a reservation of power to repeal or amend.

§ 1112. Taxation of land grants.-But a different case is presented where land or other tangible form of state aid is granted. The franchise has no existence until it is conferred upon the corporation. It is created by the act granting it. Lands and chattels, on the contrary, have an existence independent of legislative action in the hands of the grantee, and they may pass from the corporation by sale or assignment. Consequently the receipt of the price of such lands by the state does not preclude it from afterwards taxing them as other property is taxed.'

If there is a provision in the charter that the corporation shall not be subject to any future tax than an annual charge provided for in the charter, such exemption covers not only the franchise but all other corporate property.3

§ 1113. Both franchise and property may be taxed.-Subject to the requirement that uniformity shall prevail in the levy and collection of public charges from all sub

1 State v. Maine Cent. R. R. Co., 74 Me. 376. Where Pullman sleeping cars are run wholly within a state, the business may be taxed as a privilege. Gibson County v. Pullman, etc., Car. Co., 42 F. 572. See also, Southern-Cotton Oil Co. v. Wemple, 44 F. 24.

2 Atty.-Gen. v. B'k of Charlotte, 4 Jones Eq. 287; Chesapeake & Ohio Canal Co. v. Balt. & Ohio R. R. Co., 4 Gill. & Johns. 1. See Penn. Coliege Cases, 13 Wall. 214; Davis v. Gray, 16 Id. 203; Farrington v. Tennessee, 95 U. S. 683.

3 State v. Berry, 2 Harr. N. J. 80; Gardner v. State, 1 Zab. 557; State B'k v. People, 4 Scam. Ill, 303; Johnson v. Com., 7 Dana, 338.

jects of taxation belonging to the same class the legislature may, in the exercise of its plenary power, as well impose a double as a single tax. So it may subject to taxation both the franchise and the property of corporations. Or it may tax franchise capital and property unless it would conflict with the state constitution.2

1 Augusta B'k v. Augusta, 36 Me. 255; People v. Worthington, 21 Ill. 170; St. Louis Life Ins. Co. v. Assessors, 56 Mo. 503; Kirby v. Shaw, 19 Pa. St. 258. A corporation formed by the consolidation of previously existing corporations is liable to the tax of 1-8 of 1 per cent. on the amount of its capital stock required by Laws of N. Y. 1886, c. 143, § 1, to be paid on filing incorporation papers by every corporation incorporated by or under any general or special law of this state, having capital stock divided into shares," though each of the corporations so consolidated paid such tax on its own incorporation. People v. Rice, 57 Hun, 486; 11 N. Y. S. 249. Revision, N. J. p. 1150, providing for the taxation of property for local purposes, is not superseded in respect to the taxation of corporations by Supp. Revision N. J., p. 1016, imposing a franchise tax on corporations to provide a revenue for the state. Tide-Water Pipe Co. v. Berry, (N. J.) 21 A. 490.

2 An act provided that "all mortgages and money owing by solvent debtors, owned or possessed by any person or persons whatsoever," shall be liable to taxation, for state purposes. Held, that the act did not impose a tax on mortgages and other moneys at interest in the hands of corporations in addition to the tax paid by the corporations upon their capital stock invested in such mortgages and loans, "persons," in the act not including corporations. Hunter's App. (Pa.), 10 A. 429; App. of Loughlin, Id. 832. When the stock of a manufacturing corporation does not exceed in value the property which it represents, all of which is assessed to the corporation, it should not be assessed to the stockholders under the provisions of R. L. Vt., § 288, providing for deducting from the value of the real and personal property on such a corporation represented by the stock, and itself taxed. Willard v. Pike, 59 Vt. 202; 9 A. 907. The deposits of a savings bank in Maryland invested in ground rents, reserved under leases of 99 years, renewable forever, on property which, by the law of the state, is assessed to, and the taxes thereon paid by, the leasehold owners are not liable to taxation under chapter 483, Laws 1874, which provided that the officers of a savings bank shall furnish to the comptroller, on or before the first day of July, in each year, the aggregate amount of deposits in such corporation and shall pay to the treasurer, on or before the first day of January succeeding, out of the interest due the depositors the state tax on said deposits." State v. Cent. Sav. B'k (Md.), 10 A. 290. Under the Mich. Tax law, providing that, except as to real estate, all taxation of state banks shall be against the shareholders, a savings bank is not liable to taxation, as a corporation, for its fixtures and surplus of property beyond its nominal capital stock, where its shareholders have been taxed upon their shares. Lenawee Co. Sav. B'k v. City of Adrian (Mich.), 33 N. W. 304.

The taxation of the capital stock of a private corporation is a taxation of its property, and not of its franchises and privileges.1

§ 1114. Double taxation.-When the capital of a corporation is taxed in addition to a tax upon its shares in the hands of the stockholders or upon the capital which is invested in its property, and also upon the property itself, it is duplicate taxation.

Where, for instance, the capital of a manufacturing corporation is taxed, and also the buildings and machinery in which it is invested, it is as complete double taxation as if a merchant were taxed upon the money value of his stock in trade and upon the stock itself. Where, however, the constitution of a state limits taxation to property and provides for the taxation of franchises at a money valuation as property and requires uniformity and equality of taxation, corporations like individuals are entitled to the protection of such provisions.2

But the franchises of a corporation may have a value distinct from that of the other property owned by the

1 Code Ala., § 478, requiring that the chief officer of such a corporation shall make return of all taxable property, stating the number of shares of stock, their par and market value, and the items of property in which its capital stock is invested, was not intended to be determinative of the character of the capital stock, but only to prescribe a method of listing the property of the corporation, and furnish data from which to ascertain the assessable value of whatever its capital was invested in. State v. Stonewall Ins. Co., 89 Ala. 335; 7 So. 758. Act N. Y. May 26th, c. 361, provides that every corporation, with certain exceptions, doing business in the state, shall be subject to a tax, upon its “corporate franchise of business," to the amount of one quarter of a mill upon its capital stock for each 1 per cent. of its dividends, where they amount to 6 per cent. on its capital, a less rate to be paid where the dividends are less than 6 per cent. Held, that the tax is one upon the “corporate franchise" or privilege of being a corporation, and not on the capital stock, to which reference is made only to fix the amount of the tax; and hence its validity is not affected by the fact that any part of the capital stock is invested in securities of the United States. Home Ins. Co. v. State, 134 U. S. 594.

2 People v. Pac. R. C. Co.'s, 83 Cal. 393; 23 P. 303.

corporation. Its exercise may yield a revenue out of all proportion to its property value when considered in comparison with that produced by the other corporate property. For this reason a tax upon the franchise additional to that upon capital or upon the tangible property in lieu of capital presents no feature of injustice.1

A construction subjecting the same property to be twice charged with a tax in the hands of the same party will never be placed upon a tax law unless its express words or the necessary implication arising therefrom requires it.2

§ 1115. Various methods of taxing corporate property.— There is no uniform rule of taxation of corporate properties and entities.

In some states fixed sums are required to be annually paid into the state treasury; in others the tax is assessed upon the property of the corporation as upon that of individuals. Others still ascertain and proportion the tax by the volume of business transacted by corporations within definite periods, and require sworn statements to be furnished to the assessor or other officer or a board as a basis of making the assessment. Still others assimilate some or all of these methods.3

The negotiable coupon bonds of a corporation are taxable only to the owners of the same at their places

1 See B'k of Commerce v. N. Y. City, 2 Black. 620; Van Allen v. The Assessors, 3 Wall. 573; Bradley v. People, 4 Wall. 459.

2 Osborn v. N. Y. & N. H. R. R. Co., 40 Conn. 491; Salem Iron, etc., Co. v. Danvers, 10 Mass. 514; B'k of Ga. v. Savannah, Dudley 130; Gordon's Executors v. Balt., 5 Gill. 231; The Tax Cases, 12 Gill. & J. 117; Smith v. Burley, 9 N. H. 423; Sav. B'k v. Portsmouth, 52 N. H. 17; Kimball v. Milford, 54 N. H. 406; State v. Collector, 37 N. J. 258; People v. Comm'rs of Taxes, 95 N. Y. 554.

3 In Pennsylvania certain manufacturing corporations are taxed according to the amount of dividends. McKellor, etc., Co. v. Com. (Pa.), 10 A. 780.

of residence, and the corporation cannot be required to impound sufficient of the interest due on such bonds to pay the taxes assessed to them by the municipality where the corporation is located.1

Precisely similar legislation has been sustained by the supreme court of the United States and by the supreme courts of nearly every state in the Union. The constitutionality of such statutes is no longer open to controversy.2

A statute prescribing the method last mentioned is virtually a tax upon the franchise, and it may be exclusive of all other taxes or an additional tax. As has been said, each state may adopt at will that system which best accords with its situation and meets its public necessities. It may be unjust and fraught with inequalities and features of hardships, or it may be just and equitable.

1 Morrow Street R. R. Co., 3 Pick. (Tenn.) 406; 5 Ry. & Corp. L. J. 248. In the same case it was held that foreign held bonds could not be taxed at all in the state of Tennessee, and the bonds owned by a resident of any city or county of the state could be taxed only in the city or county where the owner resides. In maintaining the validity of the statute requiring the tax upon the shares to be paid by the corporation at the place of its domicile, the court said: "Shares are not debts of the corporation as are its bonds and other obligations. The fiction that personal property has no situs but that of the owner will always yield whenever the actual fact is opposed to the fiction, and when the purposes of justice likewise demand that the actual situs shall be examined. Shares are a species of intangible personal property. They have no actual situs, such as tangible personals have. The situs of such an anomalous kind of intangible property may very well be fixed for purposes of taxation, at the place where the corporation has its situs. Such a situs is more nearly in accord with the fact than any other, and the location is in accord with reason and the demands of justice. The validity of legislation thus fixing the place of taxation has been more than once vindicated by this court."

2 Tappan v. Merchants' B'k, 19 Wall. 390; Mendota v. Smith, 65 Ill. 44; American Coal Co. v. Alleghany, 59 Md. 186; St. Albans v. Car Co., 57 Vt. 81; People v. Tax Commrs., 35 N. Y. 423. Though a corporation is in the hands of a receiver appointed by the U. S. court it is the duty of its treasurer, who is also the treasurer of the receiver, to assess the tax of three mills on its bounded indebtedness, as required by Act Pa., June 30, 1885, and the receiver, having paid the interest in full without deducting the tax, the company is liable for the same. Com. v. Phil. & R. C. & I. Co. (Pa.), 20 A. 531.