(dissenting); This is an action by the county of Grand Forks to recover from the defendant about $30,000 back taxes for the years 1906 to 1914, inclusive, on property that escaped taxation in those years.
The complaint avers that in 1914, under the direction of the tax commissioners, the county auditor of Grand Forks county duly assessed certain personal property situated in the city and county of Grand *344Forks, to wit, bonds and stocks, for said years, as property having escaped taxation; that all of such personal property was then and there and had during each of said years been the property of the defendant and had not been assessed or taxed during any of said years. That such assessment was duly equalized by the boards of equalization and duly entered and extended on the tax list of said county against the personal property of the defendant. That during the year 1914 the city assessor of Grand Forks duly assessed for that year certain personal property of the defendant, in the city of Grand Forks, to wit, stocks and bonds, and the same was duly equalized and taxes extended against the same to the amount of $3,180; and that the county commissioners duly passed a resolution to bring suit for the collection of such taxes.
The answer amounts to a general denial, and it avei’S that in said several years the defendant had no property in the city or county of Gi*and Forks, and that during said years it did not own stocks or bonds of any kind.
On all points of law and fact the trial court found against the plaintiff, and it appeals to this court.
The lengthy brief of counsel for plaintiff is swollen with needless citations and quotations from the couids of other states, and with points quite immaterial. For instance, it is contended that the tax in question is not really a property tax, as alleged in the complaint, but that it is a franchise tax, or a tax on the very existence of the corporation, because it is a corporation of this state, — and numerous authorities aro cited to show that states may levy such a franchise tax. To all that the answer is that the complaint does not count on a corporate franchise tax, and such a tax is unknown to the laws of this state. To secure its corporate existence in accordance with the laws of the state, defendant paid to the state the requisite fee of $50, and now it is contended that the state may tax its existence to the amount of three or four thousand dollars a year. But the state is not in that kind of business. The plaintiff brings this action to recover a judgment for the alleged taxes of seven years on personal property that escaped taxation. Of course, in such an action, the plaintiff has the burden of proof. The plaintiff must show the existence of property within the taxing jurisdiction, an assessment of the property in the manner *345prescribed by law, a levy of tbe several taxes in pursuance of law. Const. § 175. Property must be assessed in tbe county, city, township, town, village, or district in wbicb it is situated, in the manner prescribed by law. Const. § 179. Tbe tax must be levied in pursuance of law on all property according to its value in money. Const. §§ 175, 176. Tbe plaintiff bas shown no compliance with these constitutional prerequisites to a valid tax, and it bas been shown beyond dispute that in said several years tbe defendant did not have property to tbe amount of $50, or even $1, within tbe taxing jurisdiction, and that it was not tbe owner of any stocks or bonds, either in Grand Forks county or elsewhere. The assessment is simply . against "stocks and bonds,” without any description of the same. ' If this refers to stoclcs or bonds of any party other than the defendant, the testimony shows that plaim tiff never purchased or owned any such securities. If it refers to stoclcs and bonds issued and sold in the rmne of the defendant company, that is a liability, and not an asset. A company does not own the thing it sells. It may own blank forms of stock certificates, with authority to sell tbe same, but until a sale is actually made, tbe blank forms have no more force or effect than blank promissory notes. In a case of this kind, where a suit is brought to recover a judgment for taxes, tbe plaintiff must aver and prove facts sufficient to constitute a cause of action. In this case there is no such proof. There was no assessment, no property to assess, and there is no evidence showing the levy of any taxes. There is no occasion for a long story on or a speculative discussion of things which may have. been. That which does not appear to exist is to be regarded as if it did not exist. § 7264.