dissenting:
By the bill in this case, it is alleged that the corporation made out and delivered to the local assessor a sworn statement, in compliance with the statute, showing the name and location of the company; that the amount of capital stock authorized was $32,500, and that this was divided into 325 shares; that the amount of capital stock paid up was $32,500; that the number of shares issued was 325; that these shares had no market value, but the statement did not show the actual value of the shares. The statement showed the total amount of indebtedness to be $103,500, and that the total assessed value of its tangible property was $46,000.
This statement passed, as required by law, from the assessor to the county clerk, from the clerk to the Auditor of State, and was by the Auditor laid before the board of equalization.
It is plain, that thereupon it became the duty of the board to “value and assess the capital stock” of this corporation in the manner prescribed by the revenue law, that is to say, to so value the same as to ascertain and determine the fair cash value of such capital stock over and above the assessed value of the tangible property of the company, (sec. 3 Rev. Law of 1872) that is, the excess of the value of the capital stock of the company over the assessed value of its tangible property.
The bill shows, that, by equalization, “the assessed value” of the tangible property of this company was fixed by the State Board of Equalization at $37,257.
The bill then states two hypotheses, and says one or the other is true, and insists that in either case, the cotirpany is entitled to have an extension of tax on its capital stock restrained.
The first hypothesis is, that the board of equalization determined the value of this capital stock to be $61,420, and assessed the company for the full amount of this capital stock, in addition to the amount of the assessment of the tangible property.
If this were true, the assessment was unlawful to the extent of $37,257, the assessed value of the tangible property, for the statute requires the excess of the value of the capital stock over the assessed value of the tangible property to be valued and assessed, and not the entire value of the capital stock in addition to the value of the tangible property. If the value of the capital stock was found by the board to be $61,420, and the assessed value of the tangible property was $37,257, plainly the excess was only $24,163, and the complainant was entitled to restrain the extension of the tax on more than $24,163, as tax on capital stock.
The second hypothesis stated in the bill is, that the State board found and determined the total value of the capital stock to be $32,500, and having so done, the board, by mistake or fraud, called the value thereof $98,677, and then found the excess of this value over the tangible property to be $61,420, when, in fact, the assessed value of the tangible property was $37,257, and the value of capital stock, as found by the board, $32,500; so that there was, in fact, no excess of value of the capital stock over that of the tangible property.
Upon the first hypothesis the board had no power to assess a tax on more than $24,163, as tax on the capital stock of the company; and upon the second hypothesis the board had no power, by law, to assess any tax on the capital stock of this company, for there was no excess over the assessed value of its tangible property, to be assessed as such.
This is not a case where a party complains that it has been assessed too high. The bill does not in any regard call in question the judgment of the hoard as an assessor. The complaint is, that having exercised its judgment aright, and properly ascertained the relative valuations of the tangible property of this company, and of its entire capital stock, and without changing that judgment, the board arbitrarily and in defiance of the express provisions of the statute, and without authority, proceeded to assess a tax upon property not subject to taxation at all.
If the first hypothesis be true, $61,420, the whole value of its capital stock was not subject to taxation, only a part of that value, $24,163, was subject to assessment.
On the second hypothesis, no part of the value of the capital stock was subject to assessment at all.
The judgment of the circuit court, it seems to me, should be reversed, and the cause remanded, with directions to allow the defendant to withdraw the demurrer and answer the bill.