The question presented on this appeal is as to the constitutionality of the act imposing a tax on the sale of stock (Laws of 1905, chap. 241), being an amendment to the Tax Law (Laws of 1896, chap. 908). Section 315 of the Tax Law, as thus added, provides : “ There is hereby imposed and there shall immediately accrue and be collected a tax as herein provided, on all sales or agreements to sell, or memoranda of sales or deliveries or transfers of shares or certificates of stock in any domestic or foreign association, company or corporation, made after the first day of June, nineteen, hundred and five, * * * on each hundred dollars of face value or fraction thereof, two cents.”
This tax how under consideration is imposed upon the'sale of a specific kind of personal property, namely, the shares of stock in an incorporated company. The seller of stock must pay to the State a sum of money upon the sale of; or agreement to sell, the stock, and thus the right to sell is made subject to the payment to the State of the tax imposed upon that sale. The free and unrestricted right to sell property is clearly recognized in this State as .an attribute of the property itself,, which cannot be separated 'from it. . (Wright v. Hart, 182 N. Y. 330.) In that case the Court of Appeals quote with approval from the opinion in Wynehamer v. People (13 N. Y. 378), as follows: “ The right to use, buy and sell property is protected by the Constitution, and when the law annihilates the value of property, and strips it of its attributes by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, ánd certainly within the constitutional provision intended expressly to shield personal rights from the exercise of arbitrary power.’ ” (See, also, People ex rel. Manhattan Savings Inst. v. Otis, 90 N. Y. 48, where it is said: “Dépriving an owner of property of one of its essential attributes is depriving him of his. property within the constitutional provision.”)
In considering the validity of this tax we must, 1 think, keep this proposition clearly in mind, that a tax is imposed upon an essential attribute of property, to be paid by any one who sells or agrees to sell it, and a failure to pay that tax is made a criminal offense punishable by fine or imprisonment or by both. ..The tax is based upon *834a percentage of the property taxed. The statute imposes a tax oh all sales or agreements to sell, or memoranda of sales or deliveries or transfers of shares of stock or certificates of stock on each $100-' of the face value or fraction thereof two cents. The tax is not- a specific tax of so much on the sale of éach share of stock, but a tax. of two cents on each $100 of face value of the stock sold; and thus the amount of the tax is fixed by a percentage of the face value of the stock that is sold. This is not a tax in the nature of a license to • carry on a particular trade or occupation. ¡Brokers who, .buy and sell stock are not required to obtain a license or to pay a tax for the privilege of engaging in the business of purchasing and selling, stocks. I-t applies to all persohs, whether the Owner or broker, who sell or deliver-shares of stock. Section 317 of the Tax Law, as added by the statute, provides that “ any person or persons who shall make any salé,. without paying the tax by this article imposed, or who shall in pursuance of any sale, deliver any stock, or evidence of the sale of any. stock or bill or memorandum thereof, without having the stamps provided for in this article' affixed thereto, shall be deemed guilty of a misdemeanor.” Whoever, therefore, makes a sale of or an agreement to sell stock, whether belonging to himself or to -another, or delivers any stdck'in pursuance of a contract of sale, must pay-the . tax or be subject to the penalty prescribed. The question to be considered is one of the power of the Legislature, to impose such a tax; and in considering that question we,must bear in mind the principle firmly established in this State that The constitutional validity of the law is to be tested, not by what lias been done under it, but what may under its authority be done. (Stuart v. Palmer, 74 N. Y. 183.) . If a tax of two cents upon each'$100 of the face value of each share ■ of stock can be imposed,, a tax of $10 upon each $100 of the face value of .each share can be imposed which would, in effect, con- . fiscaté all. shares of stock which were of the market, value of $10 per share or less. If this tax is upheld" I do not see why the Legis- - lature, could not impose a" tax on the sale of wheat or any other commodity, fixing an arbitrary' value upon the property to be taxed, or select any other species of property and tax -a sale or delivery of it, the tax to be based upon a value, or assumed value, to .be fixed by the Legislature. I should have no doubt about the ■ • power of the Legisla ture, to impose a tax upon the sale of all per*835sonal property, all real property, or upon all property of a particular class, basing that tax upon the value of the property, or the ' amount at which it was actually sold; but the. tax here sought to be enforced is, as I view it, of a very difieren t character. Shares of stock of incorporated companies are selected, and upon a sale of such stock . there is imposed a tax', not based upon the value of the property. or the amount for which it- was actually sold, but upon what is called the face value of the stock, a value which rarely, if ever, represents its true selling value. Consideration of the'principles which the Court of Appeals have applied where the question of the constitutional power of the Legislature in relation to taxation., has been discussed has satisfied me that this tax cannot be sustained without a violation of the constitutional provision that no person shall be deprived of his life, liberty or property without due process of law. (H. Y. Const, art. 1, § 6.) On considering the cases we must bear in mind that this is a tax of‘two cents upon each $100 of face valúe of the stock or fraction thereof.
In Stuart v. Palmer (supra) an act had been passed by the Legislature to lay out,-open and grade Atlantic avenue in the town of Hew Lots, Kings county. (See Laws of 1869, chap. 217, as amd. by Laws of 1870, chap. 619.) ' It provided for two assessments, one for damages awarded to the owner of the land for taking land which was not conveyed, and another for the expenses of'regulating, grading, etc. The former assessment was to be made and confirmed after proper notice to and hearing of the persons interested. The latter assessment could be made without any notice to or hearing of any person. Judge Earl, delivering the opinion of the court, says : “ I am of opinion that the Constitution sanctions no law imposing such an assessment, without a notice to, and a hearing or an opportunity of a hearing by the owners of the property to be assessed. It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard. * * * The constitutional validity of law is to.be tested, not by what has been done under it, but by what may, by its authority, be done. The Legislature may prescribe the kind of notice and the mode in which it shall be given, but it cannot dispense with all notice. * * .* A tax-or assess*836ment upon property arbitrarily imposed, without reference to some system of just apportionment, could not be upheld, * * * What one pays for taxes and assessments is taken for the public good and can be justified upon no other theory, Private property cannot be taken for private purposes^ ‘even, under the legislative power of taxation. * * Taxation and assessment imply apportionment. Each person must share the burdens of taxation and assessment equally with all others in like situation. * •* * The Legislature can no more arbitrarily impose an assessment for which property may be taken and sold, than it can render a judgment against a person without a hearing. If is a rule founded on the first principles of natural justice,--olderthan written-constitutions, that a citizen'shall not be' "deprived of his life, liberty or property without an opportunity to be heard in defense of his rights, and. the "constitutional provision that no person shall be deprived of these /without due process of law,’ - has its foundation in this rule. * "* * < Due process of law ’ is not confined to judicial proceedings, but extends to every case which may deprive'a citizen of life, liberty or property, whether the - proceeding be judicial,'administrative- or, executive in its nature.”And the learned judge then calls attention to a large number of cases which upheld the contention that where a tax is based upon the, value of property, before such- a tax can be imposed, the owner of the property or the person liable for the tax is entitled to notice , so that he can be heard before the tax is imposed.
The same question was presented in Remsen v. Wheeler (105 N. Y. 573). In that case an .assessment, for Water rates, upon a vacant lot in the city of Brooklyn made under chapter 306- of the Laws of 1859, an act in reference,to the supply of said city, with' water, Where no notice was given to the owner of- the levying of the-assessment, or opportunity for him to be heard, was held to be . illegal and void: The act in that case provided ' in section 24, among other things, that the water board should, in every year,, by resolution, fix the price which should be assessed upon every vacant lot situated upon any street, lane, alley or court through or into which distributing pipes had been laid, until the bonds issued for the construction of the water works, With the interest thereon, should have been paidand that- the sums so assessed, together with the percentages for defaults, should be a. lien upon the said premises *837respectively, and in determining this case the court say: “ The lots of the plaintiffs were vacant, and hence were assessed and assessable for water rates under this section. As no use of the water could be made upon vacant lots, it must have been intended that whatever assessment was made upon them under this section was to be apportioned according to the value of the lots, or the benefits to them, or the cost of bringing the water to them respectively. It cannot be supposed that it was the legislative intent or the practical operation of the section that a vacant lot worth $1,000 should be assessed for water,rates as much as one worth $100,000. Unless this section requires the assessment for. water rates upon vacant lots to be imposed and apportioned according to values, benefits or costs, it could not be justified as a scheme of taxation, and would be obnoxious to constitutional objections. Therefore, in reference to_ the imposition of these ■ assessments, as in reference to the imposition of other assessments and taxes, the lot owners were entitled'at some stage of the proceeding to a notice and an opportunity to be heard; and unless the law gave them the right to notice and an opportunity to be heard before the board which was authorized to impose the assessment, it was unconstitutional' and void for the reason stated in Stuart v. Palmer (74 N. Y. 183);” and although there was a dissenting opinion in that case, this proposition was not disputed, Judge Finch, in his dissenting opinion, stating: “ Section 24 * * * authorizes them to ‘ fix the price which shall be assessed ’ ‘upon every vacant lot situated upon any street, lane, alley or court through or into which distributing pipes shall have been laid,’ and makes the‘sums so assessed’and the ‘percentages for default’ a lien upon the lands and to be enforced like other assessments. Ho notice to any one and no opportunity to be heard is given by the act, and it is wholly immaterial whether the water is used or not, and the plaintiffs contend that for such defect the act is unconstitutional and the water rates absolutely void. * * * These water rates, at least as to vacant property, are called assessments and are in their nature sufeh, and it is difficult, if not impossible, to see how they can be sustained.”
In Nehasane Park Association v. Lloyd (167 N. Y. 431) the question of the constitutionality of chapter 347 of the Laws of 1853, authorizing the commissioners to levy a tax of fifteen cents on each *838one hundred acres of the land described in the county of Lewis and ten cents on each one hundred acres of the land described in the counties of Hamilton and Herkimer, was discussed, the court, saying v The Legislature thus, created a special tax district and then provided that all lands within that district should be taxed at a specified sum ' per acre, without any regard to the value of the lands, or the benefits to be derived from the improvement. The statute did not give to the • landowner a hearing or an opportunity to be heard in regard to the apportionment of the tax. It was a uniform burden fixed by the Legislature itself - upon all lands within the district irrespective of their value, or their relation to the proposed improvement, or any special' benefit to be derived from the construction of the rtiad. We are not prepared to say that the statute was a valid exercise of power under the Constitution. It has been generally understood that a fixed; and arbitrary sum, assessed by statute upon property and imposed without reference to some system of just and equitable apportionment, and without any opportunity to the owner to be. heard, cannot be upheld.” (Citing Stuart v. Palmer, 74 N. Y. 183 ; McLaughlin v. Miller, 124 id. 510 ; Remsen v. Wheeler, 105 id. 573 ; Spencer v. Merchant, 125 U. S. 345 ; Norwood v. Baker, 172 id. 269 ; Jones v. Town of Tonawanda, 158 N. Y. 438 ; Cooley Taxn. [2d ed.] 243, 244.)
In discussing the constitutionality of the original Collateral Inheritance Tax Law (Laws of 1885, chap. 483), which imposed a tax of five dollars on every hundred .dollars of the clear market value of ■ the property transferred, Judge Earl, delivering the opinion of the court in Matter of McPherson (104 N. Y. 306) j says: “ The power- . of the Legislature over the subject of taxation, except as limited by constitutional restrictions, is unbounded. . It is for that body, in the exercise of its discretion, to select the objects of taxation. It may impose all the taxes upon, lands, pr all upon personal property, or all upon houses or upon incomes. It may raise revenue by capitation taxes, by special taxes upon carriages, horses, servants, dogs, franchises and upon every species of property and upon all kinds of busi: ness and trades. * * * It is not very important to determine in this case whether the act of 1885 is to be regarded as imposing-a tax upon property or upon the succession or devolution of property by will or intestacy. In eitjier case it is a special tax. In the one case *839it is a tax upon the particular class of propérty, and in the other case a tax upon the succession or devolution of property, or the right to receive property in'the cases mentioned in the statute. Whether it be one or the other it is free from constitutional objection. It has 'never been questioned that the Legislature can impose a tax upon all sales of property, upon all incomes, upon all acquisitions of property, upon all business and upon all transfers. * * * If this be regarded as a tax upon property, then it is free from constitutional objection if it be equally imposed and properly apportioned upon all the property of the class to which it belongs. A, tax imposed for the general welfare upon a particular house, or the houses. of a particular neighborhood, would be amenable to constitutional objection, but if imposed upon all the houses in the State, then it is a tax imposed upon all the property of that class, and is amenable to no objection. * * * This tax is imposed according to. the value of the legacy and collateral inheritance liable to be taxed, and hence there must be- some- mode of ascertaining that value; and for that purpose judicial action is requisite at some stage of the proceeding before the liability of the taxpayer becomes finally fixed. He must have some kind of notice of the proceeding against him, and a hearing or an opportunity to be heal'd in reference to the value of his property, and the amount of the tax which is thus to be imposed. Unless he has these, his constitutional right to due process of law has been invaded.”
The case of Bell's Gap Railroad Co. v. Pennsylvania (134 U. S. 232) presented a question as to whether an assessment .of á tax of three mills upon the nominal or face value of bonds issued by a corporation, instead of- assessing it upon the actual value of the bonds, was valid. It was held that “ This might have been subject to question under the State laws; but the State courts have upheld the assessment as valid. We are to accept it, therefore, as part of the State system of taxation, authorized by its Constitution and laws.” In determining that the tax did not viqlate any provision of the Constitution of the United States, it was said: “ We do not perceive that the assessment in question transgresses this provision.* There is no unjust discrimination against any persons or corporations. The presumption is that corporate securities are worth their *840face value.” In speaking of the power of the State to adjust its system of taxation, it was said : “ It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it. may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for'payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and'those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the State Legislature, of the people of the State in framing their Constitution.” This .case has no relation to the construction that the courts of this State have' given to the provisions of the State Con- ' stitution; and it seems there to have been based upon a presumption that a bond or other obligation for the .payment of money by a solvent debtor is presumably worth the face value of the obligation a presumption which certainly does not apply to shares of stock which, although having what is called face value, are not obligations to pay a sum of money hut which simply represent an undivided interest in the assets of the corporation after payment of its debts. Those assets may greatly exceed the face value of all its capital stock, or their value may he much less than this face value. There is certainly no presumption that a stock is worth more or less than the face value.
Assuming that the Legislature wpuld have the power to impose a ■tax upon the sale of stock based upon the value of the stock or' the amount for which the stock was actually sold, I think it is within the prohibition of the Constitution for the Legislature to impose' a tax not upon the valué of the property sold ; not upon the price at which the property was sold, but upon an amount which the .Legislature should fix as the value of the property sold, and as I view it this is just wliat this statute under consideration does. It fixes the face value of the stock as the basis upon which a tax is imposed and requires,the payment upon each sale of the stock of a percentage of that face value. " ,
The Attorney-Greneral in bis brief States that “ This act is-really an extension of the present Transfer Tax Laws of Hew York. * * * *841Sales and transfers of stock, even though they occur every day, are in no wise different from transfers occurring by deed or will, to take effect at death. Both are different methods of alienation. If, therefore, the Legislature has constitutional power to fasten a tax or impost upon transfers by will, particularly when they are not gratuitous, it would seem beyond question that they have equal power to fasten tax upon transfers during life by sale. of .stock.” Assuming that this is a correct statement and the constitutionality of this act is to be determined by the application of the rules which were applied in determining the constitutionality of the Transfer Tax Law, it seems to me that under the decision of the Court of Appeals in Matter of McPherson (supra) this tax cannot be sustained for the reason, as before stated, that the amount of the tax is not fixed Upon the actual value of the property sold or the amount for which it was sold, but upon an arbitrary valuation fixed by the Legislature, the tax imposed being a’ percentage of the face value of the stock and not of its actual value. In the McPherson case it was expressly held that the Collateral Inheritance Tax Law, which was the original Transfer Tax Law, could not be upheld unless it provided for a notice to the taxpayer and gave him an opportunity to be heard in relation to the value of the property upon which the tax was imposed before the imposition of the tax. It would seem to follow, therefore, that if that act had imposed a tax Upon the face value of every share of stock which passed by will or the intestate .laws, regardless of its actual value, it would have been void. If the Legislature could impose a tax based upon a percentage of the face value of the shares of stock, I can see no reason why it could not value each share of stock sold at $100 a share and impose a tax of a percentage of the value of the stock thus arbitrarily fixed. Under the authorities before cited the Legislature could not without providing for a notice to or a hearing of .the owner of a piece of real property impose on each piece of real property a fixed tax, or arbitrarily fix the value of each piece of property at a certain amount and require the payment of a percentage of that value as a tax upon the property. Uor could the Legislature upon a sale of property require the owner thereof to pay a percentage of the value of the property fixed by the Legislature but1 which is not based in some way upon its actual, value.
*842There are many shares of stock of a face value of $100 each, which do not sell for $10. The tax upon such a share-would be two cents on $10. There are stocks of the face value of $100 per share which sell for over $4,000- per share. Upon the sale of a share of that stock the. tax would be two cents on $4,000, certainly in inequality in the tax which is unparalleled in any system of taxation of which I have ever heard. If the Legislature could impose a tax of two cents upon each $100 of the face value of every share of stock, sold it could impose a tax of $10 upon each $100 of 'the face - value of every share of stock sold and thus confiscate all stock-which did not sell f'or more than $10.per share.
We are not unmindful of the decision which involved the validity of the. United States Pevenue Tax Law of 1898 (30 U.' . S. Stat, at Large, 451, § 6; Id: 458, Schedule Á), reported-in 115 Federal Peporter; 207, affirmed by the Supreme Court of the United States in 192 United States, 363. The discussion in that case depended entirely upon the right of Congress to impose a tax upon the'sale of stock, a power which I have no doubt the Legislature of this State possesses. The question as to the method to. be' adopted in ascertaining the amount of such a tax was not discussed; and this particular question does not seem to have been presented in that case. The power of taxation given to Congress and the limitation of that power by the Federal Constitution present an entirely different question than that presented by the limitation of the power, of the Legislature in regard to taxation by the Constitution of this State, and it is with the latter question that we have to deal in this case, and the construction given to the State Constitution by the. courts of this State-is to control.. As 1 view it it is the method adopted by which'the. amount of the tax that is im-posed is ascertained, which violates the fundamental law of the State. For - that, reason the tax cannot be sustained.
‘ Other questions -are presented on this - appeal which-, in view of this conclusion, are not considered,, but for the reasons stated the order, appealed from should be reversed and the relator discharged.
Order affirmed.
U. S. Const.-14th amenclt. § 1.— [Rep.