and effect-no element of discrimination between foreign and domestic companies being present in the statute imposing the tax-a tax on the property of the company within the state.10 The tax imposed by a statute, providing that each domestic railroad company shall pay to the state an annual tax of a certain per cent upon the actual cash value of every share of its capital stock, but that when the company's road lies partly in the state and partly in an adjoining state or in adjoining states, the company shall only be required to pay the tax on such number of the shares of its capital stock as will be in that proportion to the whole number of such shares which the length of the road within the limits of the state shall bear to the whole length of such road, is not a tax upon the shares of the individual stockholders nor upon the property of the company but is one upon the company itself, measured by a percentage upon the cash value of a certain proportional part of the shares of its capital stock, and therefore the statute is not invalid as imposing a tax upon property beyond the jurisdiction of the state, even though the proportion which the stockholders who are citizens and residents of the state bear to the entire number of stockholders is less than the proportion which the mileage within the state bears to the entire mileage, and notwithstanding the fact that the proportion which the mileage within the state bears to the entire mileage is greater than the proportion which the amount of capital invested within the state bears to the entire capital and greater than the proportion which the value of the property of the company within the state bears to the value of all of its property.11 Again, it has been held that a foreign corporation, engaged in the business of furnishing, upon the responsibility of the railroad companies and for a mileage compensation, refrigerator cars for the transportation of perishable products over the various lines of railroad in the United States, such cars being furnished, not under any contract of lease or allotment to any railroad company operating in the state but as needed and upon the direct request of shippers or railroad companies, acting on behalf of shippers, may be required, by the state, to pay a tax on the average number of its cars within the borders of the state, notwithstanding the fact that none of such cars carry purely intrastate shipments and that the corporation has no office nor place of business nor property, other than its cars, within the state.12 But the Kentucky statute 10 Pullman's Palace Car Co. V. Pennsylvania, 141 U. S. 18, 35 L. Ed. 613. 11 Minot v. Philadelphia, W. & B. R. Co. (The Delaware Railroad Tax), 18 Wall. (U. S.) 206, 21 L. Ed. 888. This tax seems to be one sui generis. 12 American Refrigerator Transit which imposes a tax upon the personal property of domestic corporations, whether such property be within or without the state, is invalid as to cars of a domestic refrigerator-car company which are permanently located in foreign states and are employed there in the prosecution of the company's business.13 A license fee or excise of a certain per cent of the entire authorized Co. v. Hall, 174 U. S. 70, 43 L. Ed. 899. Said the court: "It having been settled, as we have seen, that where a corporation of one state brings into another, to use and employ, a portion of its movable personal property, it is legitimate for the latter to impose upon such property, thus used and employed, its fair share of the burdens of taxation imposed upon similar property used in like way by its own citizens, we think that such a tax may be properly assessed and collected, in cases like the present, where the specific and individual items of property so used and employed were not continuously the same, but were constantly changing, according to the exigencies of the business, and that the tax may be fixed by an appraisement and valuation of the average amount of the property thus habitually used and employed. Nor would the fact that such cars were employed as vehicles of transportation in the interchange of interstate commerce render their taxation invalid." See also Union Refrigerator Transit Co. V. Lynch, 177 U. S. 149, 44 L. Ed. 708, 710, in which the facts were similar to those in American Refrigerator Transit Co. v. Hall, supra, and in which the court said: "The complaint in this case contained no averment as to the average number of cars of plaintiff in error used in the state of Utah, but it did show that the company was doing business in Utah in the year for which the tax in question was levied, and that it was running its cars into and through the state, using, employing, and caring for them there for profit, in the same manner as the cars in that [American Refrigerator Transit Co. v. Hall] case, and it was not alleged that the assessment by the state board of equalization was unreasonable, or unjust, or in excess of the valuation of other like property for taxation, or that the method of apportionment was erroneous. The presumption is that the action of the taxing officers was correct and regular, and that the number of cars assessed by the state board of equalization was the average number used and employed by plaintiff in error in the state of Utah during 1897. The objection is not that too many cars were assessed, or that they were assessed too much, or in an improper manner, even if we could consider such questions, but simply that they could not be taxed at all. And this objection was considered and overruled in the case [American Refrigerator Transit Co. v. Hall] to which we have referred." 13 Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 50 L. Ed. 150, 4 Ann. Cas. 493, rev'g 26 Ky. L. Rep. 23, 80 S. W. 490. In delivering the opinion of the Federal Supreme Court in this case, Mr. Justice Brown used the following cautionary language: "It is unnecessary to say that this case does not involve the question of the taxation of intangible personal property, or of inheritance or succession taxes, or of questions arising between different municipalities or taxing districts within the same state, which are controlled by different considerations.'' capital of a foreign corporation doing both a local and interstate. business in different states, although declared by the state imposing it to be merely a charge for the privilege of conducting a local business within its boundaries, is essentially and for every practical purpose a tax on the entire business of the corporation, including that which is interstate, and on its entire property, including that in other states, the capital stock representing as it does all of the business of the corporation of every class and all of the corporation's property wherever located.14 So, in view of the commerce and due process clauses of the Federal Constitution, the Texas statutes, under which a foreign corporation is required to pay a charge, based on the amount of its authorized capital stock, for a permit to do business in the state, and to pay an annual franchise tax based upon the amount of its capital stock, unless the amount thereof, issued and outstanding, plus the surplus and undivided profits of the corporation exceed its authorized capital stock, when and in which case the tax is to be based on the aggregate of such amounts, are invalid as to a foreign corporation engaged in interstate commerce.15 But an annual tax on domestic corporations, computable on the basis of the corporation's paid-up capital stock unless such stock amount to $5,000,000 or more, when and in which case the charge is to be the maximum of $2,500, is a franchise tax and not one on property, and hence a domestie railroad company with a paid-up capital of $31,660,000, is not, by being compelled to pay such tax, required to pay a tax on property outside of the jurisdiction of the state even though its road extends into foreign states.16 Nor is the Arkansas franchise tax on the right to do an intrastate business, the amount of which tax is fixed. solely by reference to the property of the corporation that is within the state and that is used in business transacted within the state, invalid as to a foreign railroad company doing business in the state.17 A franchise tax on a domestic railroad company, computed on the basis of the amount of the company's capital stock employed within the state, is not invalidated by the fact that the only deduction from the amount of the capital stock for rolling stock which was used 14 International Paper Co. v. Massachusetts, 246 U. S. 135, 142, 62 L. Ed. 624, Ann. Cas. 1918 C 617, recapitulating the holdings in Ludwig v. Western U. Tel. Co., 216 U. S. 146, 54 L. Ed. 423; Pullman Co. v. Kansas, 216 U. S. 56, 54 L. Ed. 378, and Western U. Tel. Co. v. Kansas, 216 U. S. 1, 54 L. Ed. 355. 15 See $ 4588, supra, and the cases cited in note 10, therein. 16 Kansas City, Ft. S. & M. R. Co. v. Botkin, 240 U. S. 227, 60 L. Ed. 617, aff'g 95 Kan. 261, 147 Pac. 791. 17 St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350, 59 L. Ed. 265, aff'g 106 Ark. 321, 152 S. W. 110. outside of the state was for such rolling stock as was exclusively so used during the whole of the tax year, and that there was no additional deduction for the proportional amount of rolling stock which was continuously absent from the state, when "the absences relied on [to sustain the claim of right to such additional deduction] were not in the course of travel upon fixed routes, but random excursions of casually chosen cars, determined by the varying orders of particular shippers and the arbitrary convenience of other roads." 18 Indiana ferry franchises acquired by a Kentucky ferry company, chartered to operate a ferry across the Ohio River, cannot, however, be included, by the state of Kentucky, in the valuation of the company's franchise.19 But it has been held that the Pennsylvania privilege tax on insurance companies of two per cent of the amount of the gross premiums on domestic business is not invalid as to a foreign insurance company to which part of the premiums paid by residents of the state are paid outside thereof.20 So, without being thereby compelled to pay a tax on property beyond the jurisdiction of the state, a consolidated railroad company, composed of a domestic company operat ing a domestic line of road and of foreign companies operating roads in foreign states, may be required to pay an annual franchise tax computed on the basis of its entire capital stock when the domestic statute under which the consolidation was locally effected provides that the consolidated company shall be in all respects subject to the laws of the state as a domestic corporation." 21 * The situs of a debt for the purpose of taxation is the residence of the creditor, and it has been held, therefore, that a state cannot tax bonds or other evidences of debt of a domestic corporation held by a nonresident, whether a natural person or a corporation, though they may be secured by a mortgage on property of the corporation situated within the state.22 On the other hand, a state may tax a 18 New York v. Miller, 202 U. S. 584, 50 L. Ed. 1155. 19 Louisville & J. Ferry Co. v. Kentucky, 188 U. S. 385, 47 L. Ed. 513, rev'g 22 Ky. L. Rep. 446, 57 S. W. 624. 20 Equitable Life Assur. Society v. Pennsylvania, 238 U. S. 143, 59 L. Ed. 1239, aff'g 239 Pa. 288, 86 Atl. 787. 21 Kansas City, M. & B. R. Co. v. Stiles, 242 U. S. 111, 61 L. Ed. 176, aff'g 192 Ala. 687, 68 So. 1018, and following Kansas City, Ft. S. & M. R. Co. v. Botkin, 240 U. S. 227, 60 L. Ed. 617. The enforcement, against a consolidated railroad company, composed of one domestic company and several foreign companies, of a statute under which a consolidated company is required to pay a sum equal to a certain per cent of its capital stock for the filing of its consolidation agreement, involves no attempt on the part of the state to extend its taxing power beyond its territorial limits. Ashley v. Ryan, 153 U. S. 436, 38 L. Ed. 773. 22 State Tax on Foreign-held Bonds, 15 Wall. (U. S.) 300, 21 L. Ed. 179; resident on bonds of a railroad company or other corporation secured by a mortgage on property in another state.23 Moreover, a state. may tax shares of the capital stock of a domestic corporation held by a nonresident, for the shares are personal property within the state, and personal property, including shares of stock, may be separated from the person of the owner, and taxed where it is situated, wherever the owner may reside.24 Under the federal statute, shares of stock in a national bank may be taxed by the state in which the bank is located, although they may be owned by nonresidents.25 And a state also may tax shares of stock in a foreign corporation when they are domestically owned.26 § 4608. Delegation of taxing power. It is a fundamental principle of constitutional law that, to quote Judge Cooley, "a sovereign power conferred by the people upon any one branch or department of the government is not to be delegated by that branch or department to any other. This is a principle which pervades our whole political system, and, when properly understood, admits of no exception. And it is applicable with peculiar force to the case of taxation.27 The power to tax is a legislative power. The people have Northern Cent. R. Co. v. Jackson, 7 Wall. (U. S.) 262, 19 L. Ed. 88; Davenport v. Mississippi & M. R. Co., 12 Iowa 539; Street R. Co. v. Morrow, 87 Tenn. 406, 2 L. R. A. 853, 11 S. W. 348; Com. v. Chesapeake & O. R. Co., 27 Gratt. (Va.) 344. In Northern Cent. Ry. Co. v. Jackson, 7 Wall. (U. S.) 262, 19 L. Ed. 88, it was held that a state cannot tax interest on mortgage bonds given by a railroad company and binding every part of its road, both within and without the state, when they are held by a nonresident. 23 Kirtland v. Hotchkiss, 100 U. S. 491, 25 L. Ed. 558; Mackay v. City & County of San Francisco, 113 Cal. 392, 45 Pac. 696; Buck v. Miller, 147 Ind. 586, 37 L. R. A. 384, 62 Am. St. Rep. 436, 47 N. E. 8, 45 N. E. 647. The fact that the bonds are payable in the other states is immaterial. See the cases above cited. 24 Tappan v. Merchants' Nat. Bank of Chicago, 19 Wall. (U. S.) 490, 22 L. Ed. 189; State v. Travelers' Ins. Co., 70 Conn. 590, 66 Am. St. Rep. 138; American Coal Co. v. Allegheny County Com'rs, 59 Md. 185; Town of St. Albans v. National Car Co., 57 Vt. 68. Compare North Carolina R. Co. v. Alamance County Com'rs, 91 N. C. 454. See also § 4624, infra. 25 See § 4626. 26 Lockwood v. Town of Weston, 61 Conn. 211, 23 Atl. 9; Greenleaf v. Board Review Morgan Co., 184 Ill. 226, 75 Am. St. Rep. 168, 56 N. E. 295. See also § 4625, infra. 27 In Michigan Cent. R. Co. v. Powers, 201 U. S. 245, 50 L. Ed. 744, the Supreme Court of the United States suggests that "there might be a question whether, even if there were a clear delegation of legislative functions [in the matter of taxation] to other departments of the state government, it would be void under the Federal Constitution,'' and, while it pretermitted a determination of the matter as being then unnecessary, it |