It is a matter of course to give costs to a complainant, upon overruling a demurrer to his bill; unless there is something very special to take the case out of the general rule. And if it were not so, an appeal will not lie for the granting or refusing interlocutory costs which are in the discretion of the court.
The only question worthy of consideration in this case, there*446fore, is whether the real estate of this corporation was liable to taxation, if it was lying entirely idle so as to produce neither rents nor income. That question depends upon the construction which is to be given to a great ntimber óf provisions contained in the chapter of the revised statutes relative to the assessment and collection of taxes; which, in connection with previous legislation, I will now consider.
It will be seen by referring to the act of April, 1823, for the assessment and collection of taxes, (Laws of 1823,-y?. 395, § 14, 16,) that previous to the revised statutes, the real estate owned by joint stock corporations, wherever situated, as well as their personal estate, was to be assessed and taxed in the town or ward where the office, or place of business of the company, was located. And that the amount of the town and county tax, when collected, was to be apportioned among the several counties of the state, in proportion to the stock held by individuals residing in such counties respectively. By the fifteenth section of the act of April, 1823, any such corporation was to be permitted to commute for the tax upon its personal property, that is, upon the amount of the capital held by individuals, exclusive of what was vested in' real estate, by paying ten per cent, upon the dividends, profits, or income of the company. That section, however, .was repealed by the amendatory act of April, 1825 ; and a new provision was substituted, allowing turnpike, canal, bridge, and manufacturing companies,' to commute by paying five per cent, upon all of their profits and income ; provided that income should not exceed five per cent, upon the capital stock of the company. Then came the provision exempting such corporations from taxation altogether, upon the production, to the board of supervisors, of an affidavit showing, to the satisfaction of that board, that the corporation was not in the receipt of any profits or income from its property. That provision, in the connection in which it then stood, must have been intended to exempt the corporation from taxation both upon its real and its personal property. But whether it then meant net income, so as to entitle the corporation to exemption if its expenditures and losses during the previous year had exceeded its receipts, or only *447to exempt it where there were no rents or profits of its real or personal estate, it is- not necessary now to inquire or consider.
The revised statutes, subsequently passed, adopted somewhat different principles in the taxation of corporations, with the exception of bridge, turnpike, and canal companies, as to the place where the real estate of the corporation should be taxed. And the provision of the previous statute, requiring the taxes upon corporations to be paid to the state treasurer, and to be distributed among the several counties in which the stockholders resided, was also abolished. That this change in the preexisting laws was deliberately and intentionally made, by the legislature, will be seen by referring to the report of the chapter relative to the assessment and collection of taxes, as originally made by the revisers. That chapter was drawn in conformity with the previous laws, requiring the real as well as the-personal estate of corporations, which were liable to taxation upon their capitals, to be assessed in the town or ward where the principal office or place of business was situated. And it provided for' the payment of the tax to the state treasurer, to be apportioned among the different counties in which the stockholders resided. (See Rev. Rep. tit. 2, § 6; and Idem, tit. 4, § 23 to 27.) But in conformity with the suggestion of the revisers, in their note to section six of the fourth title of that chapter, the legislature amended the sixth section of the second title, and passed it in the form in which it now appears in the revised statutes. And they also struck out the last five sections of the fourth title, which provided for a distribution of the taxes, upon joint stock corporations, among the several counties in which the stockholders should reside. The sixth section of the first title, as amended and passed, provides that “ the real estate of all incorporated companies liable to taxation, shall be assessed in' the town or ward in which the same shall lie; in the same manner as the estate of individuals.” It also provides for the ' assessment of the personal estate of all corporations, liable to taxation on their capitals, in the town or ward where their principal place of business or office is located. And a special provision is made, in the last clause of this section, as to the place *448where the real as well as the personal estate of bridge, canal, and turnpike corporations shall be assessed. What is meant by the real estate of a corporation, and what by its personal estate, in this chapter of the revised statutes, is clearly defined by the second and third sections of the first title. (1 R. S. 387.) Its personal estate, as there defined, is only that portion of its capital which is not invested in real estate. But the capital of a corporation embraces the whole of its stock paid in or secured to be paid; whether it is invested in real or in personal property. The principle of the revised statutes, on the subject of the taxation of corporations, appears to be to tax the real estate, except as to canal, turnpike, and bridge companies, upon its actual value, and for the benefit of the inhabitants of the town and county where it is situated, in the same manner that the property of individuals is taxed ; and to tax the residue of its capital, after deducting the cost of its real estate, as personal property, for the benefit of the inhabitants of the town and county where the financial concerns of the corporation are carried on.
To ascertain what-the expression, real estate liable to taxation, in this sixth section of the second title of the tax law, means, we must examine other provisions contained in the same chapter. The first section of that chapter commences with a general declaration that all lands, and all personal estate, whether owned by individuals or corporations, shall be liable to taxation; subject to the exemptions thereinafter specified. (1 R. S. 387.) And among the exemptions specified in the fourth section of the first title, is the real estate of colleges, academies, and seminaries of learning, and other literary and charitable corporations therein mentioned; and also the personal estate of every incorporated company, not made liable to taxation upon, its capital by the fourth title of that chapter. None of these exemptions embrace the real estate of joint stock corporations,' which derive a profit or income from their capitals, or otherwise. And upon this, the counsel for the appellants insist that the ninth section , of the fourth title of this chapter of the revised statutes, could not have been intended by the legislature to exempt the real estate of such corporations from taxation, although they derived *449no profits or income whatever from their real or personal estates. I have also endeavored to bring my mind to the same conclusion. And I regret that I have not been able to do so. For I cannot discover any principle of justice or equity which should exempt from taxation, the unproductive property of stockholders in a joint stock corporation that is not equally applicable to the unproductive real or personal estate which the same persons, or others, may hold in their own names as individuals. Why the revisers extended the exemption from taxation in certain cases to all corporations, which by the previous law was confined to a very few that were then deemed favorites of the public, is not explained in the notes to their report. But that they had thus extended such exemption was distinctly stated in the note to the ninth section of the fourth title; in which section that exemption is found. The legislature, therefore, adopted this change in the law with a full knowledge of the fact that such a change was intended to be made. And the directions of that section are so plain and positive that I cannot doubt that the legislature, as well as the revisers, must have intended to exempt the real as well as the personal estate of the corporation from taxation; provided a satisfactory afiidavit xvas presented to the board of supervisors of the county in which such property was assessed, showing that the company xvas not in the receipt of any income or profits whatever, either from its real or its personal estate. For the section expressly directs, that if such affidavit is made and filed, with the clerk of the board, within the time prescribed, the name of the corporation shall be stricken out of the assessment roll, and no tax shall be imposed upon it. This direction to strike the name of the corporation from the assessment roll, when taken in connection xvith the sixth and seventh sections of that title, appears to render it impossible for the board of supervisors to tax either its real or personal estate; unless they wholly disregard the positive injunctions of the statute. For the sixth and seventh sections require the name of the corporation to be inserted in the first column of the assessment roll; its real estate situated in the town or ward in xvhich the assessment is made, in the second column; the actual value of such real estate in *450the third column ; and the part of its capital which is liable to taxation as personal property, in the fourth column. And if the name of the corporation is stricken from the first column, nei thcr the value of the real estate as specified in the third, nor the part of its capital which is assessed as personal estate and set down in the fourth column, can be taxed to the corporation. Hence the board of supervisors, in the present case, found it necessary, in order to carry into effect their construction of the statute, to disobey the direction of the legislature to strike the name of the corporation from the assessment roll.
I have not, in the examination of this case, had access to the report of the judiciary committee of the senate, or the report of the former attorney general upon this question, in the case of the Black River Cotton and Woollen Manufacturing Company. But in reference to the act for the relief of that company, it is sufficient to say, the corporation had not taken the necessary steps to entitle it to exemption, either as to its real or personal property: And as there was neither justice nor equity in the principle which would have exempted any of the property of the corporation from taxation, when property of the same kind belonging to individuals was made to bear its portion of the public burthens, the legislature had a perfect right to refuse to exempt the real estate ; and would have done better justice if it had also refused to exempt the personal estate. For manufacturing companies are not taxed upon the nominal amount of their capitals paid in, but only upon the actual value of their real and personal estates. (1 R. S. 416, § 6, 7.) And the persons who own stock in such corporations are not taxable as individuals for the value of the stock held by them. {Idem, 388, § 7.) It may also be proper to say, that upon the construction which was put upon the section of the revised statutes now under consideration, in the recent case of The People v. The Supervisors of Niagara, (4 Hill’s Rep. 20,) probably very few, if any, of these manufacturing companies were entitled to any exemption from taxation, except the right to commute for five per cent, upon their net income. For most of them have real «state which must .produce some rent or income to the corpora*451tion, even if the company is not engaged in manufacturing. And to render the affidavit satisfactory to the board of supervisors, they should require it to be so drawn as to leave no doubt upon their minds that the real, as well as the personal estate of the company, is wholly unproductive; so that it yields neither rents nor income, which can be received by the corporation or its agents.
In the present case, the bill avers that the affidavit produced was satisfactory to the board; and that no objection was made either to its form or its sufficiency. The language of the affidavit is as broad as the provision of the statute, and upon this demurrer to the bill, I am bound to presume the supervisors were satisfied the corporation had received no rents or profits from its real estate, nor any income from its personal property, within the year. And if they supposed the deponent had mistaken the law or the facts, in making the affidavit, they should have suggested it at the time; so that the matter might be explained by a supplemental affidavit. The conclusion at which I have arrived, therefore, is that the board of supervisors erred in refusing to strike the name of the corporation from the assessment roll, and in imposing a tax upon any part of its property.
No question was raised by the counsel for the defendants as to the jurisdiction of the court. I have not, therefore, considered the question whether this is a proper case of equitable cognizance, or whether the complainants had a perfect remedy at law, by mandamus, to compel the supervisors to strike the name of the corporation from the assessment roll.
The decretal order appealed from must be affirmed with costs.