The right to levy the tax cannot be defeated by any neglect of the city or town to make the proper returns. The commissioners may ascertain the necessary facts “ otherwise.” The language of the statute does not preclude the commissioners from making the examination of the returns through the instrumentality of clerks employed by them.
No question of law is raised by the exceptions in regard to the notice to the defendants. It was a question of fact merely which must have been found by the judge against the defend ants ; and his finding, in matters of fact, is conclusive.
*393The defendants cannot complain of a redaction of the tax, after notice of the original assessment. If not made upon application therefor, it may be presumed to have been with the assent of the defendants.
The tax imposed by St. 1864, c. 208, has been decided to be an excise upon the corporate franchise, and not a property tax. Commonwealth v. Hamilton Manuf. Co. 12 Allen, 298. It is not affected by the character of the investments of the corporate property, except so far as deductions are allowed by the provisions of the statute itself; and the statute does not authorize the deductions which are claimed in this case.
The constitutionality of the tax is not to be determined by circumstances which are peculiar to the particular case in which the question arises. The provisions of the St. of 1864, c. 208, have been decided to be in accordance with the constitution; and the fact that the defendant corporation held property, which was subject to the burden of taxation in other ways, does not render this tax upon its franchise illegal. In the practical operation of the powers of taxation, which are given in several forms, it is inevitable that double taxation should occur in some cases. The legislature may relieve against it by allowing deductions, if it sees fit to do so; but the court can only apply the law as it stands. Exceptions overruled.