nonpayment of the tax, payment thereof to avoid such penalties is not voluntary.98 So, where a statute imposing an illegal tax upon a foreign corporation, besides giving an action of debt to the state, provides that every corporation which shall fail to pay such tax shall forfeit its right to do business in the state and be subject to a heavy penalty which increases with the lapse of time, a foreign corporation which pays the tax, notifying the officer to whom it pays the tax at the time that it makes such payment that it disputes the validity of the tax, can recover the sum paid from such officer.99 Where, however, to an action, if, at the same time, the citizen is put to a serious disadvantage in the assertion of his legal, in this case of his constitutional, rights, by defense in the suit, justice may require that he should be at liberty to avoid those disadvantages by paying promptly and bringing suit on his side. He is entitled to assert his supposed right on reasonably equal terms. See Ex parte Young, 209 U. S. 123, 146, 52 L. Ed. 714, 723, 13 L. R. A. (N. S.) 932, 28 Sup. Ct. Rep. 441, 14 A. & E. Ann. Cas. 764. If he should seek an injunction on the principle of that case and of Western U. Teleg. Co. v. Andrews, 216 U. S. 165, 54 L. Ed. 430, 30 Sup. Ct. Rep. 286, he would run the same risk as if he waited to be sued. In this case the law, besides giving an action of debt to the state, provides that every corporation that fails to pay the tax shall forfeit its right to do business in the state until the tax is paid, and also shall pay a penalty of ten per cent for every six months or fractional part of six months of default after May 1 of each year. It may be that the forfeiture of the right to do business would not be authoritatively established except by a quo warranto provided for in the following section, but before or without the proceeding, the effect of the forfeiture clause upon the plaintiff's subsequent contracts and business might be serious (see Ludwig v. Western U. Teleg. Co., 216 U. S. 146, 54 L. Ed. 423, 30 Sup. Ct. Rep. 280), and 99 Atchison, T. & S. F. R. Co. v. O'Connor, 223 U. S. 280, 56 L. Ed. 436, Ann. Cas. 1913 C 1050. In this case, Mr. Justice Holmes, speaking for the court, said: "It is reasonable that the man who denies the legality of a tax should have a clear and certain remedy. The rule being established that, apart from special circumstances, he cannot interfere by injunction with the state's collection of its revenues, an action at law to recover back what he has paid is the alternative left. Of course, we are speaking of those cases where the state is not put to an action if the citizen refuses to pay. In these latter he can interpose his objections by way of defense; but when, as is common, the state has a more summary remedy, such as distress, and the party indicates by protest that he is yielding to what he cannot prevent, courts sometimes, perhaps, have been a little too slow to recognize the implied duress under which payment is made. But even if the state is driven the foreign corporation does not, in any sense, come within the purview of the statute, as for example, where it is engaged only in interstate commerce, and the statute operates only on corporations doing intrastate business, the payment by such corporation of the tax under protest, on a mere demand, cannot be recovered. As said by the Supreme Court of the United States, it had no more right to recover than would a dry goods merchant who voluntarily paid a tax illegally imposed on those engaged in the selling of liquors. To permit those not affected by a statute to pay the sum thereby assessed, and then sue for its recovery on the ground that the act was void, would reverse in any event the penalty would go on aecruing during all the time that might be spent before the validity of the defense could be adjudged. As appears from the decision below, the plaintiff could have had no certainty of ultimate success, and we are of opinion that it was not called upon to take the risk of having its contracts disputed and its business injured, and of finding the tax more or less nearly doubled in case it finally had to pay. In other words, we are of opinion that the payment was made under duress. See Gaar, S. & Co. v. Shannon, decided this day. (223 U. S. 468, post, 510, 32 Sup. Ct. Rep. 236.) The other question is whether the defendant is liable to the suit. The defendant collected the money, and it is alleged that he still has it. He was notified when he received it that the plaintiff disputed his right. If he had no right, as he had not, to collect the money, his doing so in the name of the state cannot protect him. Erskine v. Van Arsdale, 15 Wall. 75, 21 L. Ed. 63. See Poindexter V. Greenhow, 114 U. S. 270, 29 L. Ed. 185, 5 Sup. Ct. Rep. 903, 962. It is said that the money, as soon as collected, belonged to the state. Very likely it would have but for the plaintiff's claim, assuming it to remain an identified trust fund; but the plaintiff's claim was paramount to that of the state, and even if the collector of the tax were authorized to appropriate the specified money and to make himself debtor for the amount, it would be inconceivable that the state should attempt to hold him after he had been required to repay the sum. Moreover, it would seem that the statute contemplated the course taken by the plaintiff, and provided against any difficulty in which the Secretary of State otherwise might find himself in case of a disputed tax. For it provides by § 6 that ‘if it shall be determined at any action at law or in equity that any corpora tion has erroneously paid said tax to the Secretary of State,' upon the filing of a certified copy of the judgment the auditor may draw a warrant for the refunding of the tax, and the state treasurer may pay it." The assessment under the law of California of steamships registered at the port of New York is a ministerial, and not a judicial, act, and being in excess of the assessors' powers does not protect the collector, to whom the taxes are paid under compulsion to prevent the sale of one of the vessels, and such taxes may be recovered back from such collector even though the company owning the vessels does not pursue its remedy to have the assessment set aside according to the provisions of the California law. Hays v. Pacific Mail S. S. Co., 17 How. (U. S.) 596, 15 L. Ed. 254. the rule that "one who strikes down a statute as violation of the Federal Constitution must bring himself by proper averments and showing within the class as to whom the act thus attacked is unconstitutional. He must show that the alleged unconstitutional feature of the law injures him, and so operates to deprive him of rights protected by the Federal Constitution." 1 In some states certiorari will lie to review the action of the assessing board.2 1 Gaar, Scott & Co. v. Shannon, 223 U. S. 468, 56 L. Ed. 510. 2 Notwithstanding the provision of the Tennessee statutes that the revision by the state board of examiners of the assessment of railroad property made by the state board of assessors shall be final and conclusive as to the value of such property, a railroad company may, under the Tennessee law, have writs of certiorari and supersedeas directed to the examiners after they have taken action in the matter of the company's assessment when the proceedings of the board of assessors, in making such assessment, did not conform to the requirements of the statute. Louisville & N. R. Co. v. Bate, 12 Lea (Tenn.) 573, 574. The New Jersey statute, applying both in the case of railroad companies and in the case of taxpayers generally, provides that, upon a certiorari of taxes, imposed by the state board of assessors, relief may be awarded by the court as well where it is claimed that the amount assessed is excessive or insufficient as where it is claimed that the principle upon which the assessment was made is erroneous; that if it shall be made to appear that the assessment is unlawful, excessive or insufficient, the court shall correct the same and reduce or increase it as may be just, or refer it back to the board of assessors who shall correct it or make a reassessment in accordance with the instructions of the court, and that, in any suit or proceeding, except on such certiorari, the certificate of the state board shall be conclusive and have the force and effect of a judgment of a court of record. Under this statute it has been held that where, in a railroad tax case, the evidence as to value is conflicting, it will be proper for the court to refuse to interfere with the decision of the state board of assessors, who may have decided upon the weight of the evidence before them in the light of their own knowledge as jurors may do and as such assessors are by statute permitted to do, but where the evidence all tends to establish a value much lower than that fixed by the board, and such board has added twenty per cent to the valuation on which the expert witnesses were in substantial accord, there is presented a case of palpable error which requires the court to set aside the assessment. Long Dock Co. v. State Board of Assessors, 86 N. J. L. 592, 92 Atl. 439, distinguished in Trenton & M. County Traction Corporation v. Mercer County Board of Taxation, N. J. L., 102 Atl. 361. "The mental process by which the board makes its inferences and reaches its conclusions is no more open to inquiry," said the court in Long Dock Co. v. State Board of Assessors, supra, "than the processes by which a jury reaches its verdict (Chicago, B. & Q. Ry. Co. v. Babcock, 204 U. S. 585, 27 Sup. Ct. 326, 51 L. Ed. 636), but the evidential facts on which the finding and judgment of the board rests are as open to inquiry as the facts proved III. OF THE STOCK, SHAREHOLDERS AND BONDHOLDERS § 4620. Taxation of shares-In general. There is nothing inherent in shares of corporate stock which prevents their being taxed in the hands of their respective owners, and perhaps no court would to-day deny that they are a proper subject of taxation. Ordinarily, they are regarded as personal property and are held to be taxable as such. "Shares of stock in a corporation," says the Appellate Court of Indiana,” are property separate and distinct from the property of the corporation itself. They are the property of the holder of the shares, over which he has entire dominion. They may be made subject to taxation, of barter and sale, of the crime of larceny, and may be replevied as other personal property may be, and in the absence of any more specific definition by the legislature, would be held to be personal property, liable to taxation within the meaning of [that part of the tax law providing that 'all property within the jurisdic tion of the state, not expressly exempt, shall be subject to taxation'] Millville, 84 N. J. L. 409, 86 Atl. 449, citing Royal Mfg. Co. v. Rahway, 75 N. J. L. 416, 67 Atl. 940. On certiorari by a corporation to review the record of the proceeding wherein the county board of taxation increased the assessment against the corporation after the latter had paid the tax on the original assessment, held that the court must assume, in the absence of evidence to the contrary, that the board acted properly, and upon due proof, and that the burden of proving facts to decrease the assessment rested upon the corpora 3Shares of stock in a corporation are regarded as personal property for the purposes of taxation." Darnell v. State, 174 Ind. 143, 90 N. E. 769. A share of stock in a corporation is personal estate, and, in the absence of any statute to the contrary, is taxable to the owner as other personal estate at the place of his residence, whether the corporation be foreign or domestic. Greenleaf v. Board Review Morgan Co., 184 Ill. 226, 75 Am. St. Rep. 168, 56 N. E. 295; Danville Banking & Trust Co. v. Parks, 88 Ill. Corporate stock is property within the meaning of the Wisconsin taxing statute. 170. State v. Hinkel, 136 Wis. 66, 116 N. W. 639. may be Shares of capital stock taxed like other property. Farring ton v. Tennessee, 95 U. S. 679, 24 L. Ed. 558. unless expressly exempted by some other provision of the law." 4 When it comes to the question of the existence of the necessary constitutional and statutory authority to tax, the courts are not altogether in harmony. The constitutions of the several states are not identical, and the statutory provisions are almost as diverse as the states are various.5 As a result of this, rules that would apply in all 4 Hasely v. Ensley, 40 Ind. App. 598, 82 N. E. 809. "That a distinction exists between that which is the property of the several shareholders and subject to taxation as other property belonging to them, and that which is the property of the collective incorporated person we call a corporation, and subject to taxation as such, has been repeatedly pointed out." Powers v. Detroit, G. H. & M. R. Co., 201 U. S. 543, 50 L. Ed. 860. "Capital stock and shares of capital stock represent different property rights, one belonging to the corporation and the other to the shareholders, and both may be taxed without violation of any established principle of law." Judy v. Beckwith, 137 Iowa 24, 15 L. R. A. (N. S.) 142, 15 Ann. Cas. 890, 114 N. W. 565. "That a corporation is a legal entity wholly distinct from its stockholders, and that the capital stock of the company, its franchises, capital, and assets, may be taxed, and a tax also laid upon the share of stock in the hands of the individual holders, is established by numerous decisions, and is, we believe, uncontroverted." Jennings v. Com., 98 Va. 80, 34 S. E. 981. "In the absence of any statute to the contrary, although a corporation may be taxable for its corporate property, the owners of shares of its stock may be taxed therefor where they reside." Seward v. Rising Sun, 79 Ind. 351. 5 Shares of stock in a manufactur ing corporation are not part of "the capital used by any merchant or manufacturer' within the meaning of the Virginia statute which saves such capital from the tax list. Jennings v. Com., 98 Va. 80, 34 S. E. 981. Under the revenue laws of Louisiana, shares of stock in banking corporations only are taxable. "Section 28, Act No. 170, p. 363, of 1898," says the Supreme Court of Louisiana, "provides that all corporations not engaged in banking shall be taxed on all the property owned by them, respectively, and makes no provision for the assessment and taxation of the shares of such corporations. The legislative intent to double the burden of taxation on ordinary corporations and to discriminate in favor of banking corporations cannot be inferred from general terms defining the objects of taxation. The special provisions of the act relative to the taxation of corporations must be taken as indicating the lawmakers' intent on the particular subject-matter." Chassaniol v. Board of Assessors of Parish of Orleans, 120 La. 777, 45 So. 604, reaffirmed in Allgeyer v. Board of Assessors, 121 La. 149, 46 So. 134. Under the law of Georgia, shares of stock in those domestic corporations, such as banks, the property of which is required by law to be returned for taxation by their respective presidents, are not taxable in the hands of the shareholders. Atlanta v. Bankers' Financing Co., 130 Ga. 534, 61 S. E. 122. Where a statute taxes shares of |