distinctions. One of them is-that shares of the stock of a corporation are taxable as such to their owners, though the corporation itself is exempt from taxation by its charter, — the capital being one thing and the shares another. Another is-that although the capital stock of the corporation may be wholly invested in bonds of the United States, which are exempt from State taxation, the shares of stock in the corporation, in the hands of the individual shareholders, are nevertheless taxable." A third is that where a corporation duly returns its property for taxation under oath, in compliance with the governing statute, the assessors are not at liberty arbitrarily to disregard the return thus made, and to take the aggregate market value of the shares as the basis of assessing its property.3 That the value of the corporate property may be ascertained for the purpose of taxation, in default of information furnished by the company, and in many cases irrespective of such information, has been often held. The shares not being the property of the corporation, but of its members, may have a value greatly above or below the value of the property of the corporation. They may have a value depending upon the mere estimation, opinion, or belief which is entertained as to the future development and prospects of the corporation, or a value based upon mere speculative probabilities or contingencies, and which has but a remote relation to the actual value of the corporate property. It may also have a value based upon a manipulated market. It is further to be observed that, where the aggregate value of the shares is taken as the basis of assessing the corporate property for taxation, and where the shares are again assessed as the 1 Union Bank v. State, 9 Yerg. (Tenn.) 490. But see post, § 2827, et seq. 2 National Bank v. Commonwealth, 9 Wall. (U. S.) 353; St. Louis &c. Asso. v. Lightner, 47 Mo. 393; post, § 2827. Such a tax may also be collected from the bank. St. Louis Building Asso. v. Lightner, supra. 3 That the "capital stock" of a corporation liable to taxation under N. Y. Laws 1857, chap. 456, § 3, is the actual capital owned by the corpo ration, and not the shares of stock: People v. Coleman, 126 N. Y. 433; 12 L. R. A. 762; 38 N. Y. St. 237; 27 N. E. Rep. 818; 10 Rail. & Corp. L. J. 188; 34 Am. & Eng. Corp. Cas. 223; reversing s. c. 36 N. Y. St. 221; 13 N. Y. Supp. 67. 4 New Orleans Gas Light Company v. Board of Assessors, 31 La. An. 475; State v. Stonewall Ins. Co., 89 Ala. 335; s. c. 7 So. Rep. 753; 8 Rail. & Corp. L. J. 308. property of their holders at their real value, this results in double taxation pure and simple,- that is to say, in the taxation of the property twice at exactly the same valuation. In short, the foregoing distinction leads irresistibly to the conclusion that the capital stock of a corporation cannot be taxed as the property of a shareholder,' and that the shares of a shareholder cannot be taxed as property of a corporation.2 § 2812. View that Taxation of both Shares and Capital is not Double Taxation.- The conception that the capital stock of a corporation is one kind of property, belonging to one owner, and that the shares into which it is divided constitute a distinct kind of property, belonging to different owners, has led several of the courts to the conclusion that for the legislature to impose a tax upon the capital, franchises, or other property of a corporation, or upon all of them together, and another and sep 1 Thus, property of a mutual fire insurance company, although consisting of personalty, is taxable to the corporation and not to its members; for, although the members are policyholders, the interest which they have in the corporate property, unless they have a claim for loss, is not such an interest as is liable to taxation. Tripp v. Merchants' Mut. F. Ins. Co., 12 R. I. 435. Many decisions are found touching this question, which merely involve the construction of statutes, and generally a comparison of different statutory provisions enacted within the same jurisdiction at different periods. They are, therefore, without value as materials of jurisprudence, and are merely noted in foot-notes in their appropriate places. Of this character is a decision in New Jersey holding that the repeal of a prior statutory system left the shares held by individual members of corporations subject to taxation; whereas they were previously exempt. State v. Jersey City, 45 N. J. L. 480. In the same category may be put a decision of the Supreme Court of Louisiana to the effect that the paid-up capital stock of the New Orleans Gas Light Company is subject to assessment and taxation, like any property of that corporation; the value of such stock to be ascertained from the market price, or in any other manner. New Orleans City Gas Light Co. v. Assessor, 31 La. An. 475. So, a decision of the Supreme Court of Ohio, holding that under certain statutes of that State an owner of shares is not required to list them for taxation, seems to possess little juridical value, because the statute in express terms so provides; although the opinion embodies a clear exposition of the difference between corporate capital and shares, which we have already quoted. Jones v. Davis, 35 Ohio St. 474. 2 This distinction between capital and shares for the purposes of taxation is taken by Turley, J., in Union Bank of Tennessee v. State, 9 Yerg. (Tenn.) 490, 501; and is also recognized in St. Louis &c. Asso. v. Lightner, 42 Mo. 421 arate tax upon the shares assessed against the shareholders personally, either directly or through the corporation,— is not double taxation. Possibly there is no case that affirms this principle in as broad a manner as that stated in the foregoing proposition; but there are several affirming it in some of its essential parts. Thus, the Supreme Court of Tennessee has held that the fact that a tax has been assessed upon the capital stock of a moneyed corporation, and paid, does not preclude a tax upon the shares of stockholders. The same court has held, under a statute, that joint-stock corporations are liable to pay the tax imposed upon their shareholders and collected through the company, and also a tax upon their real estate, although the latter may have been purchased with money paid in as capital stock. In a later case the same court, taking a seeming distinction between the tangible property of a corporation and its capital stock, held that taxation of shares of corporate stock in the hands of stockholders, as their individual property, is not unconstitutional as constituting double taxation because a tax has already been laid upon the property of the corporation from which the capital stock in the hands of the corporation is omitted. In other words, the court held that the tangible property of a corporation in which its capital has been invested may be taxed, and that the shares of its members may also be taxed, and the latter tax collected through the corporation. So, in North Carolina it is said to be settled law that the shares of an individual shareholder are personal property, which are deemed to follow the owner, and which are hence subject to taxation as personal estate at the place of his residence; and this although the property and franchises of the corporation are also separately taxed, and although this results in a double taxation. In Iowa it has been held that the legislature may authorize the taxation of the prop 1 Memphis v. Ensley, 6 Baxter (Tenn), 553; s. c. 32 Am. Rep. 532. 2 Nashville Gas Light Co. v. Nashville, 8 Lea (Tenn.), 406. 3 Street R. Co. v. Morrow, 87 Tenn. 406; s. c. 2 L. R. A. 853; 5 Rail. & Corp. L. J. 248; 11 S. W. Rep. 348. 4 So also held in Union Bank v. State, 9 Yerg. (Tenn.) 490. So said by Swayne, J., in Farrington . Tennessee, 95 U. S. 679, 687. 5 Belo v. Forsyth County, 82 N. C. 415; s. c. 33 Am. Rep. 688; Worth t. Ashe County, 82 N. C. 420; s. c. 33 Am. Rep. 692. See also Porter v. Rockford &c. R. Co., 76 Ill. 561; Danville &c. Co. v. Parks, 88 Ill. 170. perty of the corporation,-e. g., a toll bridge,— against the corporation, and a taxation of the shares of stock of the corporation against the stockholders.1 § 2813. Contrary View that the Taxation of both Capital and Shares is Double Taxation.- Opposed to the foregoing is a line of judicial decisions, some of them dealing with the subject on principle, and some of them more or less influenced by the language of statutes and constitutional provisions, which unite in the conclusion that where a tax is laid upon the property of the corporation, whether under the name of capital or in the form of a tax upon the tangible property into which its capital has been transmuted, — another tax assessed against the shareholders upon the shares held by them of the capital stock of the corporation, is double taxation and not permissible. So, in respect of national banks, where the statute of a State imposes upon the State banks a tax on their capital (the shares in the hands of their shareholders being exempt from taxation), it cannot lay a tax on the shares of national banks organized under the act of Congress of June 3, 1864, which provides: "That 1 Cook v. Burlington, 59 Ia. 251; s. c. 44 Am. Rep. 679. Adams, J., concurred specially on the peculiar facts of the case. That double taxation has not been favored by that court is shown by several of its expressions. In Tallman v. Butler County, 12 Ia. 531, 534, it was said that "it is neither the policy nor the justice of the law to tolerate double taxation." In United States Express Co. v. Ellyson, 28 Ia. 370, 378, it was said that "double taxation would be so unjust as to excite disfavor of both courts and legislature." See also McGregor v. Vaupel, 24 Ia. 436. 2 Gillespie v. Gaston, 67 Tex. 599; s. c. 4 S. W. Rep. 248; San Francisco v. Spring Valley Waterworks, 63 Cal. 524 (prior to Const. of 1879). The tax cases, 12 Gill. & J. (Md.), 117 (no opinion); Bordon v. Baltimore, 5 Gill. (Md.) 236 (doctrine recognized); The Republic Life Ins. Co. v. Pollak, 75 Ill. 292, 300 (recognized as pro hibited by statute); Porter v. Rockford &c. R. Co., 76 Ill. 561, 572 (not presumed to have been intended); Pennsylvania Co. v. Com. (Pa.), 13 Cent. 486; s. c. 46 Phila. Leg. Int. 300; 15 Atl. Rep. 456; 22 W. N. C. 340 (not officially reported construing statutes); State v. St. Louis &c. R. Co., 77 Mo. 202; Valle v. Zeigler, 84 Mo. 214; Middlesex R. Co. v. Charlestown, 8 Allen (Mass.), 330; American Bank v. Mumford, 4 R. I. 478; Providence Institution v. Gardiner, 4 R. I. 484. In the Appeal of Des Moines Water Co., 48 Ia. 324, 336, it was held that where a statute authorizes the assessment of the property of corporations the same as that of individuals, and also the assessment of the shares of stock to the individual owners, taxation under either method is legal, but whether under both the court left undecided. nothing in this act shall be construed to prevent all the shares in any of the said associations, held by any person or body corporate, from being included in the valuation of the personal property of such person or corporation in the assessment of taxes imposed by or under State authority, at the place where such bank is located, and not elsewhere, but not at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State; provided, further, that the tax so imposed under the laws of any State upon the shares of any of the associations, authorized by this act, shall not exceed the rate imposed upon the shares in any of the banks organized under the authority of the State where such association is located; provided, also, that nothing in this act shall exempt the real estate of associations from either State, county, or municipal taxes, to the same extent, according to its value, as other real estate is taxed." 1 § 2814. An Intent to Impose a Double Tax not Imputable to the Legislature. Other decisions will be met with which, construing more or less doubtful statutes, refuse to impute to the legislature the purpose of taxing at once the tangible property of a corporation and its intangible representative, the shares held by its members. One such case observes that "a taxation of shares at their appraised value would, in fact, be a double taxation of the property, once to the corporation itself, and again to the corporators, which would be unjust, oppressive, and unconstitutional." So, a case in Pennsylvania, officially reported, dealing with this subject, as involved in the construction of certain statutes, contains this observation in the opinion of the court by Paxson, J.: "Conceding the power of the legislature to tax in this manner, its exercise is never to be presumed. The intent to impose double taxation must be clearly expressed." 3 A statute of Indiana prohibits such taxation in explicit terms: 1 Van Allen v. Assessors, 3 Wall. (U. S.) 573, 577; Bradley v. People, 4 Wall. (U. S.) 459 (reversing s. c. sub nom. People v. Bradley, 39 Ill. 130). 2 Smith v. Burley, 9 N. H. 423, 427. 3 Pennsylvania Co. v. Com. (Pa.), 15 Atl. Rep. 456; s. c. 22 W. N. C. 340. Similarly, Lenawee County Savings Bank v. Adrian, 66 Mich. 273, 276, per Campbell, C. J.; Porter v. Rockford &c. R. Co., 76 Ill. 561, 572; State v. St. Louis &c. R. Co., 77 Mo. 202, 210; Valle v. Zeigler, 84 Mo.214; Ogden v. St. Joseph, 90 Mo. 522; American Bank v. Mumford, 4 R. I. 478, 483, per Bosworth, J. |