* Headnotes 1. Taxation, 37 Cyc., p. 731; 2. Pleading, 31 Cyc., pp. 333, 335; 3. Taxation, 37 Cyc., p. 864; On power to tax shares of stock owned by residents in foreign corporations, see notes in 58 L.R.A. 578, 580; L.R.A. 1915C, 942; 26 R.C.L., pp. 184, 289; 3 R.C.L. Supp., p. 1459; 5 R.C.L. Supp., p. 1399; 4. Taxation, 37 Cyc., p. 891; 5. Taxation, 37 Cyc., p. 893; 6. Taxation, 37 Cyc., p. 773; 7. Taxation, 37 Cyc., p. 864; 8. Taxation, 37 Cyc., p. 769; 9. Taxation, 37 Cyc., p. 993; 10. Taxation, 37 Cyc. pp. 993, 994; 11. Taxation, 37 Cyc. p. 864. The appellant, as sheriff and tax collector of Covington county, instituted this suit in the circuit court seeking *Page 702 to recover of and from the appellee taxes alleged to be due by him as a resident owner of ten shares of the capital stock of the Lumber-Mineral Company, a corporation incorporated and existing under the laws of the state of Maine, but having its place of business in Covington county, Miss. The declaration was framed in two counts. In the first count it is sought to recover the privilege tax imposed under chapter 129, Laws of 1924, and also to recover the penalty of twenty-five dollars per share provided by said act for a failure to return said shares for assessment, while in the second count delinquent ad valorem taxes for the year 1923 were sought to be recovered against the owner of this stock in a foreign corporation. There was a separate demurrer to each count in this declaration, and from a judgment sustaining these demurrers, this appeal was prosecuted.
The demurrer to the first count of the declaration challenged the constitutionality of chapter 129, Laws of 1924, on the ground that the privilege tax sought to be imposed thereby on citizens of the state of Mississippi for ownership of stock in foreign corporations is in effect a property tax, and consequently violates the uniformity clause of section 112 of the Constitution of the state.
Section 112 of the Constitution of 1890 reads as follows: "Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. The legislature may, however, impose a tax per capita upon such domestic animals as from their nature and habits are destructive of other property. Property shall be assessed for taxes under general laws, and by uniform rules, according to its true value. But the legislature may provide for a special mode of valuation and assessment for railroads, and railroad and other corporate property, or for particular species of property belonging to persons, corporations, or associations not situated wholly in one county. But all such property shall be assessed at its true value, and no county shall be denied the right to levy county and special taxes upon such assessment *Page 703 as in other cases of property situated and assessed in the county."
The provisions of section 1, 2, and 3 of chapter 129, Laws of 1924, are, respectively, as follows:
"Section 1. That a privilege tax of one-half of one percentum upon the right of residents of Mississippi to own each and every share of the capital stock of nonresident corporations, stock companies, associations or trust estates, organized and conducting business for profit is hereby imposed and assessed; the said privilege tax to be collected at the time and in the manner that other privilege taxes are collected, to be computed upon a basis of the actual market value of said stock at the time said shares shall be returned for assessment under the law; provided, that in each and every case the par value of said stock shall be taken as prima-facie evidence of the actual value thereof; and where said stock has no par value, then said stock shall prima facie for-the purpose of assessment be valued at one hundred dollars per share.
"Sec. 2. That said shares of the capital stock of said nonresident corporations, stock companies, associations or trust estates, organized and conducting business for profit, owned by resident citizens of the state of Mississippi, be and the same is hereby exempted from ad valorem taxation in the state; the said privilege tax imposed by section 1 of this act being in lieu ofad valorem taxation.
"Sec. 3. That whenever any owner of said capital stock of said nonresident corporations, stock companies, associations or trust estates, organized and conducting business for profit shall fail to return said shares of capital stock for assessment of said privilege tax, the said owner shall forfeit to the state the sum of twenty-five dollars per share of said stock owned as a penalty for said failure, for each year he fails to return said stock for taxation."
While the act under review denominates the tax imposed *Page 704 as a privilege tax on the right of residents of Mississippi to own shares of the capital stock of nonresident corporations, it cannot be doubted that the tax exacted is not an excise or privilege tax, and that it operates, and can only operate, as a tax on property. In the case of Thompson v. Kreutzer,112 Miss. 165 72 So. 891, the court had under consideration a similar question, and the language of Chief Justice SMITH in that case is peculiarly applicable to, and is decisive of, the question here presented. In that case the court said:
"In a strict legal sense, `property' (from the Latin wordproprius, meaning belonging to one; one's own) is synonymous with the `right of ownership' and means one's exclusive right of possessing, enjoying, and disposing of a thing. . . . In order that a thing may be owned, some one must, of course, have a right to the ownership thereof. A tax on a thing is a tax on all its essential attributes; and a tax on an essential attribute of a thing is a tax on the thing itself. So that, a tax on a thing owned is necessarily a tax on the right of ownership thereof; and a tax on the right of ownership of a thing is necessarily a tax on the thing itself. No definition of property can be framed which does not include the right of ownership. Consequently, no tax can be imposed on the right of ownership which is not also a tax on property."
To the same effect is the holding of the court in the case ofThompson v. McLeod, 112 Miss. 383, 73 So. 193, L.R.A. 1918C, 893, Ann. Cas. 1918A, 674. Section 112 of our Constitution requires that "taxation shall be uniform and equal throughout the estate," and that "property shall be taxed in proportion to its value," and it seems clear that the tax imposed by the act here under review operates necessarily as a tax on property and not as a privilege tax, and that it violates section 112 of the Constitution, and that the court below was correct in holding this act unconstitutional and void.
The second count of the declaration seeks to collect delinquentad valorem taxes for the previous year, the *Page 705 same having been assessed against the appellee as an additional assessment. In support of the action of the court below in sustaining the demurrer to this count, the appellee contends that his shares of stock in the Lumber-Mineral Company "were not subject to assessment for an ad valorem tax, because all the property of this foreign corporation, whether real or personal, was situated in the state of Mississippi, assessed for taxation as the property of other persons, and taxes paid thereon in an amount in the aggregate equal to its capital stock." The pleadings, however, do not present that state of facts, and the question as limited and presented by counsel for the appellee does not arise. The declaration avers the ownership of the shares of stock of a foreign corporation by the appellee, the failure of the appellee to return these shares of stock for assessment, the assessment thereof by the sheriff and tax collector as an additional assessment, and the failure and refusal of the appellee to pay the taxes so assessed, and then avers that the defendant, appellee, "asserts" that all the tangible property of the corporation is located and taxed in this state. This mere recital of an alleged claim or defense of the appellee was mere surplusage and wholly immaterial, and is not an averment of the existence of a fact which is admitted by the demurrer. A demurrer only admits facts that are well pleaded, and does not admit mere recitals of conclusions, either of fact or of law. Upon the record now before us, there is no showing that all or any part of the tangible property of this corporation is located or taxed in this state, and consequently the questions of whether or not shares of stock of a foreign corporation owned by a resident of this state are exempted or rendered immune from taxation, by reason of the fact that the tangible property of the corporation is located and taxed in this state, or whether or not, in fixing the valuation of such stock for purposes of taxation, there may be deducted from the real value of the stock the aggregate value of such tangible property, are not presented for decision, *Page 706 and upon those questions we express no opinion whatever. The only question presented for decision by the averments of this declaration and the admissions of the demurrer is whether or not, under the Constitution and statutes of this state, the shares of stock in a foreign corporation are in any event, taxable in the hands of a resident holder and owner.
In the consideration of this question, it may be well to state certain general principles which appear to be established by authority. It is well settled that a state has the power to tax shares of stock of a foreign corporation which are owned by residents of the state. In 37 Cyc. 864, the rule is announced in the following language:
"Each state has the right and power to tax its own resident citizens on shares of stock in foreign corporations owned and held by them, the stock having its situs at the place of the owner's domicile, and this right is not affected by the fact that the stockholder may have been taxed upon the same stock in another state. This rule also applies even where the rule in regard to domestic corporations is that the corporation shall be taxed on its capital or property and that this shall relieve the stockholders from taxation on their shares; and regardless of whether the foreign corporation pays taxes on its capital or property in the foreign state or not."
In 26 R.C.L., section 129, p. 158, the doctrine is announced that — "There is a clear distinction between the capital stock of a corporation and its shares of stock in the hands of individual stockholders, so that the taxation of the one property is not the taxation of the other, and it is well settled that the property of shareholders in their shares, and the property of the corporation in its capital stock, are distinct property interests, and where that is the clearly expressed legislative intent both may be taxed. . . . It is equally well settled that a tax on the property of a corporation and a tax on the shares of stock in the hands of the individual stockholders, though in a sense double taxation, is not unconstitutional on that account." *Page 707
To the same effect are the cases Shelby County v. UnionBank, 161 U.S. 149, 16 S.Ct. 558, 40 L.Ed. 650; Bank ofCommerce v. Tenn., 161 U.S. 134, 16 S.Ct. 456, 40 L.Ed. 645;Rogers v. Hennepin County, 240 U.S. 184, 36 S.Ct. 265, 60 L.Ed. 594; Sturges v. Carter, 114 U.S. 511, 5 S.Ct. 1014, 29 L.Ed. 240; Denver v. Hobbs' Estate, 58 Colo. 220, 144 P. 874, Ann. Cas. 1916C, 863, and note thereto appended.
In 26 R.C.L., section 155, p. 184, it is said: "An individual may be taxed in the state in which he lives on shares of stock in either domestic or foreign corporations, and a state may tax shares of stock in domestic corporations owned by nonresidents. . . . A stockholder has no constitutional right to a deduction from the valuation of the shares in his hands for the purposes of taxation on account of real estate in which part of the capital of the corporation is invested and which is taxed in the city or town in which it is situated. . . . It is well settled that the shareholder is not constitutionally entitled to a deduction for a proportionate amount of the capital of the corporation that is invested in the United States bonds, state bonds or other securities which are themselves exempt from taxation."
Again, in section 254 of 26 R.C.L., it is said: "So, also, the shares of stock are taxable to the owners even if the capital stock of the corporation is exempt from taxation by law. In fact, a general statute requiring the taxation of all property within the state will be construed as requiring the taxation of shares in foreign corporations owned by residents of the state without deduction on account of the property of the corporation located and taxed outside the state even when the constitution of the state expressly prohibits double taxation or when the property of the corporation is located and taxed within the state."
An exemption from taxation will never be presumed, and the burden is on a claimant to establish clearly his right to an exemption. In the case of Morris Ice Co. v. *Page 708 Adams, 75 Miss. 410, 22 So. 944, the court said that: "The rule is universal that he who claims exemption must show, affirmatively, an exemption expressly declared and that the claimant is clearly embraced within the terms of the exemption."
While in Cooley on Taxation, vol. 2 (4 Ed.), p. 1407, the doctrine is announced that: "If an exemption is found to exist, it must not be enlarged by construction, since the reasonable presumption is that the state has granted in express terms all it intended to grant at all, and that unless the privilege is limited to the very terms of the statute the favor would be extended beyond what was meant."
There is in our statutory law no definite scheme provided for returning for assessment the shares of stock of a foreign corporation, but section 4267, Code of 1906, section 6901, Hemingway's Code, provides a detailed scheme or method of fixing the taxable value of the stock of domestic corporations, and for returning the same for assessment, and provides that the capital stock of such company or corporation shall be assessed to it for taxation to the extent of the full amount of the value thereof, less the value of its assessed and taxed real estate. In the case of State v. Simmons, 70 Miss. 485, 12 So. 477, the court had under consideration the statutes then existing providing for the assessment of the capital stock of a domestic corporation, and it is fully recognized that the court there held that the intent and language of the pertinent statutes did not impose taxes on the shares of stock of a domestic corporation in the hands of owners thereof. The Simmons case, as well as the case of Bank v.Oxford, 70 Miss. 513, 12 So. 203, proceeds upon the theory that the capital stock of a domestic corporation is required to be assessed to the corporation (which, of course, is not true, and cannot be true, in the case of a foreign corporation), and that, since in the case of domestic corporations the stock has been taxed once to the corporation itself, the presumption is that it should not *Page 709 be taxed again to the shareholder. The Simmons case also held that in fixing the value of the stock for the purpose of taxation, the value of its property otherwise taxed should be deducted. This rule for determining the assessable value of the stock of a domestic corporation was afterwards crystallized into statute in section 4267, Code of 1906, section 6901, Hemingway's Code, providing that the capital stock of such a company or corporation shall be assessed to it for taxation, and in determining the value of such stock for assessment, the value of its assessed and taxed real estate shall be deducted from its market value, while in the case of Panola County v. Carrier,89 Miss. 277, 42 So. 347, it was held that the assessed value of the personal property of the corporation should also be deducted from the market value of such stock. In several cases since the decision of the Simmons case, the court has had under consideration the taxation of shares of stock of a corporation; but in each of these cases the stock involved was that of a domestic corporation and the language of these cases must be limited to the questions involved.
Turning now to the general statutes with reference to taxation and exemptions from taxation, we find that section 4251, Code of 1906, section 6878, Hemingway's Code, which declares the general law and policy of the state in regard to exemption from taxation, provides that "the following property, and no other, shall be exempt from taxation, to-wit." Then follows a detailed list of exemptions which does not include shares of stock in a foreign corporation. This section is an express declaration that all property in the state shall be taxed except that which is specifically exempted. The same result might have been accomplished by providing that "all property in this state shall be taxed, except the following," and then inserting the enumerated list of property to be exempted.
Section 4257, Code of 1906, section 6888, Hemingway's Code, declares that — "All taxable property brought into the state or acquired or held by any person before the *Page 710 first day of February shall be assessed, and taxes thereon paid for the current year."
Chapter 101, Laws of 1916, section 6904, Hemingway's Code, provides a form for printed lists which the board of supervisors is required to furnish the tax assessors for the use of the taxpayers in returning their property for assessment, and one of the items of property which this list expressly requires the taxpayer to return for taxation is the "value of all shares or certificates of stock in any corporation, stock company or association domiciled outside of this state."
Section 4272, Code of 1906, section 6906, Hemingway's Code, requires that the tax list of every taxpayer shall be made out on one of these printed lists to be furnished by the assessor, and that this list shall be filled in ink, and the oath appended thereto executed by the taxpayer.
Sections 4264 and 4271, Code of 1906, sections 6898 and 6905, Hemingway's Code, also require that the printed list, furnished the taxpayer, and containing blanks for the valuation of property, shall have appended thereto an oath, to be executed by the taxpayer, that the list as returned is a just and true account of all the personal property owned by the taxpayer which is subject to taxation.
In addition to the foregoing provisions specifically designating shares of stock in a foreign corporation as taxable property, the list which the tax assessor is required by section 6904, Hemingway's Code, to furnish the taxpayer, contains an omnibus clause for the "value of all other personal property owned by the party assessed subject to taxation not specifically mentioned."
Chapter 134 of the Laws of 1918 authorized and directed the state tax commission to prescribe the form of tax lists to be used in the assessment of property for state and county purposes, and requires the board of supervisors of each county to furnish the assessor with printed lists for the assessment of property in accordance with the form of tax lists prepared and prescribed *Page 711 by the state tax commission; and in pursuance of the authority of this act, the tax commission readopted the form of tax list prescribed by section 6904, Hemingway's Code, in so far as it provided for the listing and taxation of the "value of all shares or certificates of stock in any corporation, stock company or association, domiciled outside of this state."
By an examination of the constitutional provision that taxation shall be uniform and equal throughout the state, and property shall be taxed in proportion to its value, and shall be assessed for taxes under general laws, and by uniform rules, according to its true value, and the statutes carrying into effect these provisions, it will be noted that section 4251, Code of 1906, section 6878, Hemingway's Code, expressly provides that all property within the state shall be taxed, except such as may be expressly exempted. That shares of stock of a corporation are a species of personal property is self-evident, and in listing in this statute property that shall be exempt from taxation, shares of stock in a foreign corporation are not included, and there is no express exemption of such stock in any other or later statute, and none is claimed to exist. On the contrary, section 6904 of Hemingway's Code, which lists the items of taxable property and expressly includes therein shares of stock of a foreign corporation, which list in so far as it affects such stock was readopted and promulgated by the state tax commission under express legislative authority and command, is an express legislative declaration in clear and unambiguous terms that such stock is taxable in the hands of the resident owner thereof, and it would seem that an application of these various statutory provisions should end the inquiry.
However, the question of the taxation by a state of the shares of stock of foreign corporations generally, and under statutory provisions analogous to those of this state, has been often considered by the courts of the several states, as well as the supreme court of the United *Page 712 States, and an analysis and application of some of these decisions will be helpful in the consideration of the applicable statutes of this state.
In the case of State v. Kidd, 125 Ala. 413, 28 So. 480, the Alabama court had under consideration the taxation in the hands of a resident of the shares of stock in a foreign railroad corporation. In that case the court stated that the revenue laws contained in the Codes of the state do not "expressly designate as taxable, shares in foreign corporations having no place of business or property in the state, though in each Code appears a general clause declaring subject to taxation `all other property, real and personal, not otherwise specified.'" From this opinion it further appears that in section 3911, Alabama Code of 1896, subd. 9, in the schedule of taxable property is placed "every share of any corporation organized under the laws of this state or any other state or of the United States (other than railroad, telegraph, express and sleeping car companies, building and loan associations and banks or banking associations), to be assessed and collected in the county wherein such corporation has its chief or home office in this state, and to be assessed at its actual market value to the person in whose name such shares stand on the books of the corporation, and not to the corporation;" while the same section prescribes a mode for assessing shares, and also corporate property, and for deducting the value of the corporation's taxable property from the value of the shares. The Alabama court, in construing this section, held that, although the language thereof seemed to include all corporations, yet a reasonable interpretation of the whole provision for taxing shares confines it to shares in corporations having taxable property in the state, and that the provisions thereof could have no application to foreign corporations having no property and doing no business in the state, and in holding that the stock of such corporations was taxable said:
"By subjecting them the state does not infringe its general policy of avoiding double taxation, for the property *Page 713 is not doubly taxed by its own laws; and it is not forced, by comity or otherwise, to conform to laws elsewhere in order to shelter property from burdens which, but for such foreign laws, would not have come upon it. That ownership of shares in capital stock is distinct from ownership of capital stock itself is generally if not everywhere recognized. Such shares are property, and as such, belong in, and are taxable in the state of the owner's residence, irrespective of legislation in another state."
The above case was appealed to the supreme court of the United States, and that court held that "the equal protection of the laws is not denied by" the above-mentioned sections of the Alabama Code, "for the taxation of railroad stock, because of the exemption of stock in domestic railroads and in others that list substantially all their property for taxation;" the court saying:
"We see nothing to prevent a state from taxing stock in some domestic corporations and leaving stock in others untaxed on the ground that it taxes the property and franchises of the latter to an amount that imposes indirectly a proportional burden on the stock. . . .
"We say that the state in taxing stock may take into account the fact that the property and franchises of the corporation are untaxed, whereas in other cases they are taxed; and we say untaxed, because they are not taxed by the state in question. The real grievance in a case like the present is that, more than probably, they are taxed elsewhere. But with that the state of Alabama is not concerned. No doubt it would be a great advantage to the country and to the individual states if principles of taxation could be agreed upon which did not conflict with each other, and a common scheme could be adopted by which taxation of substantially the same property in two jurisdictions could be avoided. But the Constitution of the United States does not go so far. [Citing authorities.] The state of Alabama is not bound to make its laws harmonize in principle with those of other *Page 714 states. If property is untaxed by its laws, then for the purpose of its laws the property is not taxed at all." Kidd v.Alabama, 188 U.S. 730, 23 S.Ct. 401, 47 L.Ed. 669.
In the cases of Georgia R. Banking Co. v. Wright,125 Ga. 589, 54 S.E. 52, and Wright v. L. N.R.R. Co., 195 U.S. 219, 25 S.Ct. 16, 49 L.Ed. 167, the question of the taxation of shares of stock of a foreign corporation was presented, and constitutional and statutory provisions affecting the taxation of shares of stock of both domestic and foreign corporations were invoked and construed which are analogous to the statutes of this state affecting the taxation of stock in foreign corporations, and to the result reached in the case of State v. Simmons,70 Miss. 485, 12 So. 477, in construing the statutes providing for the taxation of stock of domestic corporations.
In the case of Georgia R. Banking Co. v. Wright, supra, the Georgia court said: "The Constitution of this state imperatively requires that all property of every nature whatsoever within the territorial limits of this state shall be subjected to taxation, except that which the Constitution in terms declares the General Assembly may in their discretion exempt from taxation."
Section 4251 of the Mississippi Code of 1906, section 6878, Hemingway's Code, in effect, declares that all property of every nature whatsoever within the territorial limits of this state shall be subjected to taxation, except that which is specifically exempted by statute. In the above-case the Georgia court further says that — "After the passage of the act of 1888, no share of stock in a domestic corporation was taxable in the hands of a shareholder; for every domestic corporation was required by law to return its property either to the Comptroller General or the tax receiver of the county."
This statutory provision of the state of Georgia is in exact accord with the construction which this court, in the case ofState v. Simmons, supra, placed upon our *Page 715 statutes providing for the taxation and assessment of shares of stock of domestic corporations. In the Banking Company case,supra, the Georgia court, in holding that under these constitutional and statutory provisions of that state, the shares of stock in a foreign corporation were taxable, said:
"The general assembly cannot make it a subject of taxation at an arbitrary value; but if it is a thing which can be brought and sold upon the market, it is within the authority of the lawmaking power to declare that for the purposes of taxation it shall be treated in the hands of the owner as of the value which it would command in the market. When that which gives it value has been taxed, the General Assembly is not required, under the Constitution, to tax it again through the medium of the shareholder. But it may do so; and when the tax levied is uniform on all shareholders of the same class, the constitutional provision as to uniformity is complied with. A shareholder in a domestic corporation whose property is taxed in the hands of the corporation by the state is not in the same class with the shareholder in a foreign corporation whose property is not taxed and cannot be taxed by the taxing authority of the state."
The analogy between the statutes of this state affecting the taxation of corporate stock and those of the state of Georgia is more apparent when we consider the language of the supreme court of the United States in the case of Wright v. L. N.R.R.Co., 195 U.S. 219, 25 S.Ct. 16, 49 L.Ed. 167, a case in which the Comptroller General of Georgia was seeking to collect from a domestic corporation taxes on the shares of stock of a foreign corporation owned by it, and in which that court refers to and discusses the Georgia constitutional and statutory provisions. In that case the court quotes the constitutional provision that "all taxation shall be uniform upon the same class of subjects, andad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected *Page 716 under general laws," and refers to the constitutional provision making void all laws exempting property from taxation, other than the property therein enumerated, which does not include stock in a foreign corporation, and also the Georgia Laws of 1898, No. 150, section 2, pars. 1, 2, p. 22, as authorizing a tax on all taxable property of the state and in construing these provisions said:
"The natural inference from the foregoing language is that the Comptroller General was bound to collect this tax. . . . The argument against the tax is that the Constitution of Georgia is satisfied if all the lands and goods in the state are taxed once, and that the appearance of the same capital in two forms technically distinct ought not to be laid hold of as an excuse for two taxes. It is admitted that no such double taxation is enforced with regard to corporations, of which the property is taxed, within the state, and it hardly would be contended that this wise moderation is unconstitutional. . . . But, from the point of view of the taxpayer, it does not matter whether all of his double taxation is done in one state or half in one and half in another. He suffers the same injustice. . . .
"The difficulty with this argument is that the Georgia Constitution requires the taxation of all property subject to be taxed in Georgia. And while it may be that the constitutional requirement is sufficiently complied with when the land and chattels which give value to the stock pay a tax, without another tax on the stock, there is much more difficulty in saying that the words are satisfied if stock is left untaxed when the land and chattels cannot be reached. . . .
"Putting the case at the lowest, the above cited section of the Constitution was adopted in the interest of the state as a tax collector, and authorizes, if it does not require, a tax on the stock. In pursuance of the Constitution, the law of 1898, under which this tax is demanded, contains the following: `In addition to the questions *Page 717 now propounded to taxpayers by the tax receivers, questions shall be framed by the Comptroller General to reach all property upon which a tax is imposed by this act, and especially the following questions: . . . Thirtieth. How many shares of stock did you own on the day fixed for the return of property for taxation issued by corporations located without this state? Thirty-first. What was the gross nominal value thereof? Thirty-second. What was the fair market value thereof?' Laws of 1898, No. 150, section 16, p. 36. This plainly contemplates that the mandate of the Constitution shall be carried out."
It will be noted that the three questions quoted above, which the Georgia act requires the taxpayer to answer, are practically identical with the provision of our statute requiring the taxpayer to disclose, list, and value for taxation the shares of stock of foreign corporations owned by him. In addition to this provision of our statute requiring the taxpayer to list stock in a foreign corporation for taxation, other provisions already quoted herein require the taxation of all property within the state, other than property specifically exempt, which does not include such stock, and it would seem, as said by United States supreme court, in the Wright case, supra, that legislation could not make the requirement to tax more explicit.
In the case of Lee v. Sturges, 46 Ohio St. 153, 19 N.E. 560, 2 L.R.A. 556, there was an effort on the part of the state of Ohio to collect taxes on the shares of stock of a foreign corporation which had only a portion of its property located and taxed in the state. The state of Ohio then had a statute exempting from taxation the shares of stock of all corporations which were required to return their capital and property for taxation. The Ohio court held that since all the capital and property of the corporation was not returned for taxation in that state, the exemption did not apply, and on appeal to the supreme court of the United States, in passing upon the question involved, the court said: *Page 718
"The exemption from taxation of investments in stocks, provided by the statute, applies only to shares of those corporations which are required to return their capital and property for taxation in the state. Jones v. Davis, 35 Ohio St. 474. This clearly means those corporations which are required to return all, or substantially all, their capital and property. There is no rule of interpretation by which the statute can be held to apply to corporations who list only a small part of their property for taxation in Ohio. If the legislature had intended to allow an exemption in such a case, it could and would have expressed that purpose by words not admitting of doubt. As the shares of the plaintiff in error in the Western Union Telegraph Company were not only not expressly, but not even by fair implication, exempted from taxation, we are of opinion that the tax complained of was authorized by law." Sturges v. Carter,144 U.S. 511, 5 S.Ct. 1014, 29 L.Ed. 240.
In the case of Bacon v. Board of State Tax Commissioners,126 Mich. 22, 85 N.W. 307, 60 L.R.A. 321, 86 Am St. Rep. 524, it was held, headnotes 1 and 3, that — (1) "The constitutional requirement of uniformity and equality in taxation is not violated by taxing shares of stock in foreign corporations and exempting those in domestic corporations, whose property is taxed within the state; and it is immaterial that the property, including the capital stock of the foreign corporations, is taxed at their domicile." (3) "The provision of the Federal Constitution that full faith and credit shall be given in each state to the public acts of every other state does not prevent the taxation of stock in a foreign corporation owned by residents of the state because the property of the corporation is taxed at its domicile."
Many cases from other states might be cited which have held that shares of stock in foreign corporations are taxable in the hands of resident owners, but most of these cases involve the construction of statutes of varying provisions, and consequently are only valuable in so far as *Page 719 they discuss the general principles involved in the taxation of corporate stock, and for purposes of comparison.
Chapter 129 of the Laws of 1924, which we have herein held to be unconstitutional and void, is the first attempt of the legislature of this state to declare an exemption in favor of stock in a foreign corporation, and it is significant to note that section 2 of this act expressly declares that shares of stock of foreign corporations owned by residents of this state are thereby exempted from ad valorem taxation, and that the so-called privilege tax attempted to be imposed by section 1 of the act shall be in lieu of ad valorem taxation. Since this act is void, it may be that it would not properly be considered a legislative construction of prior statutes affecting the taxation of such stock; but, if so, it is at least a very strong indication of legislative thought on the subject. The act of 1924 having been declared void, all existing laws affected, or attempted to be repealed, thereby, are in full force and effect, and we are of the opinion that they clearly and unequivocally impose taxes on the shares of stock of a foreign corporation owned by residents of this state.
The second count of the declaration in the case at bar simply charged that on February 1, 1923, the defendant was the owner of ten shares of the capital stock of a foreign corporation, which was of the par and actual value of one hundred dollars per share; that these shares of stock were not assessed for the year 1923, as required by law; that the plaintiff as sheriff and tax collector had assessed the ten shares of stock against the defendant at its actual value as an additional assessment; that the taxes thereon calculated at the rate fixed by the state and county for the year 1923 were due; and that the defendant neglected and refused to pay this tax. The third ground of the demurrer challenged the sufficiency of these averments of the declaration, and it follows from the views herein expressed that we are of the opinion that this demurrer should have been overruled. The judgment of the court below sustaining the demurrer to *Page 720 this count will therefore be reversed, and the cause remanded for trial on the second count.
Affirmed in part, and reversed in part.