dissenting: I rest my dissent upon the following statement in the opinion of the Court: “We agree with the learned counsel that the Atlantic Coast Line Railroad Company of Virginia is a corporation *375of the State of North Carolina, and that it was so decided in Staton v. R. R., 144 N. C., 145, and affirmed in R. R. v. Spencer, 166 N. C., 522.”
I agree that this is a correct statement of fact and law, and it is supported by Cox v. R. R., 166 N. C., 652, in addition to tbe authorities cited.
The Court then bolds that the stockholder must list bis shares of stock for taxation because the corporation has not paid “a tax on its capital stock,” and this position of the Court will of course be met if I can show that it is not necessary for the corporation to actually pay “a tax on its capital stock” in order that the stockholder may be exempt, or, if necessary, that the corporation has paid the tax.
Is it necessary for the corporation to pay in order that the stockholder may be relieved?
I think clearly not, because the corporation is required by law to list its capital stock and pay the taxes thereon, and if it does not do so, it is the duty of the taxing powers to make it pay, instead of trying to shift its burdens to the shoulders of the stockholders.
Does this corporation pay a tax on its capital stock?
It is alleged in tbe complaint and admitted in tbe answer that tbe Atlantic Coast Line Railroad Company of Virginia paid in this State in 1917. a license tax of $10 per mile for nine hundred miles; that tbe ad valorem, value of tbe tangible assets of the company for 1917, as fixed by tbe State Tax Commission, was $15,891,335, and that of the franchise for that year as fixed by said commission was $18,754,010.
Note that tbe value of tbe franchise of said corporation as assessed by tbe State Tax Commission for taxation for tbe year 1917, which is tbe year for which tbe taxes in controversy in this action were assessed against tbe plaintiff, is admitted to be $18,754,010.
Does this valuation of tbe franchise include capital stock?
This is answered by tbe agreement of tbe parties filed in tbe record as follows:'
“In this case it is agreed as follows:
“1. That under the Revenue Law and Machinery Act of 1917, in taxing railroad companies, the State Tax Commission, in making up the tax to be assessed against railroad companies, whether domestic or foreign, did not tax the capital stock of any railroad company except as such capital stock was embraced within the items mentioned in section 64 of the Machinery Act; that in assessing tax against railroad companies organized under the laws of this State, where such railroad companies were operated wholly within this State, the entire capital stock of the railroad company was embraced in and assessed as a part of the 'value of the franchise’ as provided by section 64 (b) of the Machinery Act; that in assessing tax against domestic railroad companies, a part *376of whose road is in this State £nd part in another State, the commission did not assess its capital stock other than as provided in section 64 (b), and only a part of its capital stock, as well as of its other property, was apportioned under section 65 of the Machinery Act of this State — In proportion to the length the main line of such road in this State bore to the whole length of said main line’; and in assessing tax against a foreign railroad, part of whose road was in this State and part thereof in another State, the assessment against the capital stock of such road, as well as its other property, was made in identically the same way as the assessment was made against a domestic railroad company, a part of whose road was in this State and part in another State.”
Three facts are settled by this agreement:
1. That in assessing tax against railroad companies organized under the laws of this State where such railroad companies were operated wholly within this State, the entire capital stock of the railroad company was embraced in and assessed as a part of the value of the franchise.
2. That in assessing tax against domestic railroad companies a part of whose road is in this State and a part in another State, a proportionate part of the capital stock was valued as a part of the franchise, the part so valued being in proportion to the length the main line of such road in- this State bore the whole length of said main line.
3. That in assessing taxes against a foreign railroad a part of whose road was in this State and a part in another State, the assessment against the capital stock of such road was made in identically the same way as the assessment made against the domestic railroad company, a part of whose road was in this State and a part in another State.
It therefore appears as an admitted fact in this record that in the value of the franchise of the Atlantic Coast Line Railroad Company of Yirginia, the State Tax Commission included the proportionate part of its capital stock in accordance with the terms of the legislative act, and that it has paid as other domestic corporations similarly situated.
Why then should not its stock have the same exemption granted to the stockholders of other corporations ?
Particularly so when the Court says in its opinion that the Atlantic Coast Line Railroad Company of Yirginia is a corporation of North Carolina, and the State Tax Commission says in its answer “that it has been the policy of the State of North Carolina for more than thirty years not to require to be listed the shares of stock held by residents of the State in corporations created by and chartered under the laws of the State.”
It is not contended, and cannot be, that the language, “pay a tax on its capital, stock,” means on its entire capital stock, because in the same statute provision is made for the valuation of the capital stock of domes*377tic corporations, and that in assessing this value the value of the tangible property is deducted from the value of the capital stock so that no domestic corporation pays on its entire capital stock.
Again, in the same section quoted in the opinion of the Court, it is provided that foreign corporations must pay on its entire capital stock in order that the stockholder may be exempt, making the clear distinction that as to the domestic corporation the stockholder shall not pay a tax on his stock if the corporation pays a tax on its capital stock, but that the foreign corporation must pay on its entire capital stock in order for this exemption to prevail.
Whether this is an unlawful discrimination between foreign and domestic corporations is not now before us, and I do not express any opinion on it.
I submit that this demonstrates that the Atlantic Coast Line Railroad Company of Virginia is paying a tax on its capital stock just as other domestic corporations do, and if so, the shares of stock of the plaintiff are not liable to taxation.
It is insisted, however, notwithstanding the statement in the opinion, that there are two corporations, one domestic and the other foreign, and that the Atlantic Coast Line Railroad Company of Virginia, in which the plaintiff holds stock, and which is referred to as the parent corporation, and the North Carolina corporation as auxiliary, is the foreign corporation.
This renews the contest that has existed in this State since 1893, and which was regarded as settled by Staton v. R. R., Spencer v. R. R., and Cox v. R. R., the Court holding in each of these cases, in accordance with the contention of the State, that the corporation was domestic, unless we are willing to say that the same corporation is domestic when it is asking to exercise its privilege of removing its causes to the Federal Court for trial, and foreign when the State is endeavoring to collect taxes.
The history of legislation on this question goes back of 1899, and, if the present question is understood, it must be considered.
The parent corporation of the Atlantic Coast Line system was the Wilmington and Weldon Railroad, chartered by the General Assembly of North Carolina in 1834.
In 1893 the right of this corporation to exemption from taxation was challenged, and finally a settlement was reached, embodied in ch. 100, Private Laws 1893. At the same session the corporation was authorized to consolidate with other railroad companies, but, no action being taken under this statute, in 1899 the authority to consolidate was continued by ch. 105, Private Laws 1899, which contains this provision: “That any and all corporations consolidated, leased, or organized under the *378provisions of tbis act shall be domestic corporations of North Carolina, and shall be subject to the jurisdiction thereof.”
These several acts were referred to and discussed in Cox v. R. R., supra, and the Court adds: “It was under the authority of these several acts of the General Assembly that the Wilmington and Weldon Railroad became a part of the Atlantic Coast Line. It had its existence originally by reason of the legislative act of this State, and was therefore a creation of the State. It continued a domestic corporation of this State for more than sixty years, and prospered under our laws. It finally came to the State and said that it desired to enter into other business arrangements, and the State consented, but upon condition that the Wilmington and Weldon Railroad Company or the company taking over its property or with which it should be consolidated should continue to be liable in the courts of the State for wrongs done in the State, which condition was accepted and acted on by the company.”
If the condition as to removal of causes prevails by consolidating under the act, why should not the same effect be given to the provision that “any and all corporations consolidated, leased, or organized under the provisions of this act shall be domestic corporations of North Carolina, and shall be subject to the jurisdiction thereof.”
Again, in the Staton case, the Court says: “The statutes and public records show that the Wilmington and Weldon Railroad Company, a domestic corporation, has, by permission of the Legislature, become one of The constituent roads’ in a line of consolidated railways extending through six States. In the consolidation are a large number of other ‘constituent roads.’ To say that each of these roads, chartered in six different States from Virginia to Alabama, have, by the consolidation, become citizens of the State of Virginia is rather startling. If this result, so far as the Wilmington and Weldon Railroad Company is concerned, has been accomplished by virtue of the power conferred by the Act of 1899, ch. 105, in defiance of the express provision in the statute that it should continue a domestic corporation, it would indicate an absence of power in the Legislature to guard the sovereign rights of the State in respect to corporations of its own creation. It would seem perfectly clear that a railroad corporation has no power to change its domicile. While the Legislature may permit a Virginia corporation to come into this State and consolidate with one of her own corporations, we cannot perceive how, in availing itself of such permission, the Virginia corporation may take the North Carolina corporation out of this State into Virginia, and so adopt- it that the State, by virtue of whose laws it came into existence and continues to exist, loses jurisdiction of it for the purpose of bringing it into her courts to answer for wrongs done her own citizens. While we do not concede that such would be the *379result of permission to consolidate, in the absence of restrictive words, certainly where, in the statute conferring the power to consolidate, it is expressly provided that the corporation, together with any corporations with which it should consolidate, should remain a domestic corporation, it would seem that such restriction would place the question beyond controversy.”
I think it therefore appears that ch. 77, Laws 1899, is not the only statute relating to the matter; that the consolidation of the Atlantic Coast Line was under ch. 105, Private Laws 1899, and that the Wilmington and Weldon Railroad, a corporation chartered, by North Carolina, with its offices and property in this State, was not permitted to enter into this consolidation except upon condition that the corporations associated with it should be North Carolina corporations.
The Virginia corporation became a part of the system upon this condition, and we have heretofore held it is bound by it, and in recognition of its obligation, it came to the State and asked that it be formally accepted as a North Carolina, which was done by ch. 77, Laws of 1899.
And in this last statute, which has been accepted, the corporation, whether foreign or not, has been domesticated for the purposes of taxation as it provides:
“Sec. 4. The powers given by this act to the Atlantic Coast Line Railroad Company of Virginia are granted upon the express condition that the property of the said Atlantic Coast Line Railroad Company of Virginia in this State shall always be liable to taxation under the Constitution and laws of this State, and that said company shall be subject to the tariffs, rules, and regulations prescribed by the board of railroad commissioners.”
Acting under this statute and under the revenue laws of the State, the corporation is now paying a privilege tax of $9,000, and taxes on tangible property of the value of $15,891,335, and on its franchise, which includes capital stock according to the method of valuation adopted by the State, of $18,754,010, which is all the corporation would have to pay on present valuations, if conceded to be a domestic corporation.
If, therefore, the Atlantic Coast Line Company of Virginia is now paying a tax on its capital stock and other property, and if the State is collecting taxes from it as a domestic corporation, why should not its stockholders enjoy the same exemption accorded to the stockholders of other domestic corporations?
I concur fully in the proposition that it is for the Legislature to determine the subjects of taxation, and think under the facts in this record it has said the shares of the plaintiff shall not be taxed.
I attach no importance to the failure to provide in these acts for a capital stock or the issuing of stock, because this is not usual in acts of *380consolidation, and if tbe corporations become North Carolina corporations by entering into tbe consolidation, tbey brought with them their capital stock.
I think it wise to adhere to our former decisions, and when we fail to do so we assume the attitude of holding that the same corporation is domestic when it is invoking the right of removal to the Federal Court, and foreign when the State wishes to impose a tax.
We also run the risk of losing the tax on the franchise of the corporation, valued at $18,754,010 (I do not say we will lose it), upon tbe ground that, being a foreign corporation engaged in interstate commerce, we can do no more than tax its property in this State, considered in connection with the use, and if such a result should be attained, the corporation can well afford to reimburse the stockholders on stock of the par value of $4,000,000. See Gloucester Ferry case, 114 U. S., 196; P. & S., S. S. Co. v. Phila., 122 U. S., 344; Postal Tel. Co. v. Adams, 155 U. S., 688.