(concurring). In the case of State ex rel. v. K. C. & M. Ry. & B. Co., 117 Ark. 606, this court held that the act of 1887, as amended by the act of March 12, 1913, Act 169, p. 724 (the back tax act), was a valid enactment. Although I dissented in that case, I realize that until it is overruled by this court or declared unconstitutional by the Supreme Court of the United States, such decision is the law, and I am bound by it. Hence, I concur in the opinion and judgment now entered.
The present suit was brought under the above statute, and, treating the same as a valid law, there is n.o escape from the conclusion that under our taxing system corporations of the character of the appellee are required to return for taxation the shares of stock into which the capital stock is divided, and these shares, for the purpose of taxation, are treated as capital stock of the corporation. The shares of stock are not taxed as the property of the shareholders, but, under our statute, they are taxed under the designation ‘ ‘ capital stock, ’ ’ and as the property of the corporation. As the shareholders are not required to tax their individual shares separately, the corporation is required to tax them in the aggregate under the head of “capital stock.” Dallas Co. v. Banks, 87 Ark. 484; Dallas Co. v. Home Fire Ins. Co., 97 Ark. 254.
The assets of the corporation of every character and wherever located may be taken into consideration by the assessing officers in ascertaining the value of the shares of stock. The situs of the shares of stock—capital stock— for the purpose of taxation, is the domicile of the corporation. The value of tangible property owned by the corporation beyond the jurisdiction of the State must be taken into consideration in determining the value of the shares of stock, for such property is one of the elements or factors giving value to the shares of stock, and the value of such property, in so far as it enters into the cal-dilation or estimate made in determining the value of the shares of stock in the aggregate can not be deducted from the sum thus ascertained to be the value of those shares, for this would be but climbing the hill and sliding back to the starting point. It would be tantamount to excluding the tangible assets of the corporation in other jurisdictions from consideration in the calculation necessary to determine the aggregate value of the shares of stock. It is not double taxation to adopt this plan for ascertaining the value of the shares of stock, or capital stock, for the reason that only the value of the shares of stock so ascertained is taxed in this State. The tangible property of the corporation outside of the State is not taxed here at all, and could not be, for that is taxed in the jurisdiction where it is located. But such property is only considered in so far as it contributes to give value to the shares of stock which the State has a right to tax, at their source, that is, the domicile of the corporation. But the rule is different as to tangible property within this State. The State has the right to tax the value of the shares of capital stock once, as ascertained by the method indicated, and, inasmuch as the tangible assets within the . State have been considered once in making up this value, the rule adopted by this court to prevent double taxation is to deduct the tangible property taxed here as such, from the aggregate value of the shares of stock taxed as capital stock because that has to be considered and is embraced in the calculation making up the total value of the shares of stock. Not to deduct the local tangible assets, taxed as such, would be equivalent to taxing the value of such assets twice. But all of this is clearly set forth and argued in the opinion of the Chief Justice.
The conclusion reached by the majority of the court, it seems to me, is the only logical result to follow, conceding, as I do, that the act is now a valid law. However, in view of the far reaching consequences that it may have, I have concluded, while my mind is on the statute, to record here my views as to the constitutionality of the act, which I frankly concede it would have been more appropriate to record in the case of State ex rel. v. K. C. & M. Ry. & B. Co., supra, but which at that time I was unable to reduce to writing by pressure of other urgent court duties.
I am firmly of. the opinion that the act under which this suit was brought is unconstitutional, because the Legislature, by striking out the words “or person” from the original Back Tax Act of 1887, and leaving the act to apply only to corporations, showed its deliberate purpose to discriminate against corporations and to favor natural persons. While it is well settled that the sovereign power may classify for taxation, it is equally well settled that such classification must have some basis in reason to justify a discrimination or distinction between taxpayers. The cases which recognize the right of the sovereign to classify, in stating the rule, also recognize the principle that if the classification be clearly unreasonable and arbitrary, and without any just distinction to rest upon, such classification comes within the inhibition of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Williams v. State, 85 Ark. 464; St. L., I. M. & S. Ry. Co. v. State, 86 Ark. 518; Mo. & N. Ark. Rd. Co. v. State, 92 Ark. 1; Ex parte Byles, 93 Ark. 612; Ozan Lumber Co., v. Union County Bank, 207 U. S. 251.
I contend that any law which shows on its face no other reason for classification than that one taxpayer is a corporation and the other an individual is based upon considerations that have no possible connection with the duties of citizens as taxpayers. Such a statute is purely arbitrary, capricious and oppressive, and is in plain violation of article 16, section 5 of our Constitution, requiring all taxes to be equal and uniform throughout the State. And by violating this provision it also violates the Fourteenth Amendment to the Constitution of the United States, which prohibits the State from denying to any person the equal protection of the laws. 1 Cooley on Tax. 72, et seq., 83; Judson on Tax., pp. 594, 606, 608, 618.
Such I understand to be the law as announced not only by the ablest authors of text books on the subject of taxation, but also by the State courts of last resort, and by the Supreme Court of the United States, where the question has arisen in the latter court, under State Constitutions having an equality and uniformity clause similar to ours. State v. Loomis, 115 Mass. 307, 314; Russell v. Croy, 164 Mo. 69; South & North Alabama Railroad v. Morris, 65 Ala. 193, 199; Santa Clara Co. v. So. Pac., 18 Fed. R. 385; North. Pac. Ry. Co. v. Walker, 47 Fed. R. 681; County of San Mateo v. So. Pac. Ry. Co., 13 Fed. 145, 150; Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 155; Bell’s Gap Rd. Co. v. Pennsylvania, 134 U. S. 232, 237; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560; Bradley v. Richmond, 227 U. S. 477.
In Fletcher v. Oliver, 25 Ark. 289, 295, we said: “Taxation by uniform rule means by one and the same unvarying standard; uniformity not only in the rate of taxation, but uniformity in the mode of assessment by which the value is ascertained. There must be an equality of burden.” In Ex parte Fort Smith & Van Buren Bridge Co., 62 Ark. 461, we said: “When the property of a few is taxed according to its value and of all others at one-half its value, then the few are required to contribute double their proportion of the burden. This is manifestly wrong-, and justice demands that it be redressed whenever it can be done in conformity to the laws. ’ ’
Legislation for the collection of “back taxes” which seeks to lay the burden of paying those taxes upon only one class of taxpayers, while exempting all others, without any reason for such discrimination other than that the one class consists of corporations while the other is natural persons, is equally as obnoxious to the equality clause of our Constitution as would be legislation making the same classification for the original assessment of taxes. The effect of such legislation in either case is to lay the burden necessary to meet the expense of government upon one class of property owners, while exempting others, based upon no other reason than a mere difference in ownership and in names of owners. Such legislation, in its last analysis, is but a flagrant discrimination against individuals who may have associated themselves according to law and for lawful purposes in order to transact their business in a common name by which the corporation is designated, and in favor of individuals who may transact precisely the same kind of business as natural persons without a corporate name. To illustrate, the Sunnyside Planting Company is a corporation engaged in the business of producing cotton in Chicot County, Arkansas. It owps two thousand acres of land in that county which is.used for that purpose. Suppose it has failed to pay taxes on such lands for fifty years. John Jones has also two thousand acres adjoining the lands of the corporation, precisely the same character of land and used for the same purpose. He, too, has failed io pay the taxes on his land for fifty years. Or say each of these taxpayers has had on hand each year during all these years one hundred mules, ten thousand in money or other of the same kind of personalty which they have failed to return for taxation. 'Can any reason be suggested why a law should be enacted compelling the corporation to pay these back taxes and expressly exempting John Jones from liability therefor? Yet such is the effect of the statute under review. See Wolff Chem. Co. v. City of Philadelphia, 66 Atl. 344, 217 Pa. 215; United States v. Milwaukee Refrig. Tr. Co., 142 Fed. 247.
The mandate of our Constitution requiring taxes to be equal and uniform forbids legislation that makes “fish of one and flesh of another” taxpayer who both stand in precisely the same relation to the government as to their taxpaying duties. The act makes no attempt to classify as to any particular corporation or special kind of property that might furnish fit subjects for classification. It is but a bald discrimination between corporations in general and natural persons. Of course, when the sovereign power is fair and just, making no arbitrary and oppressive discrimination in the law itself by which it seeks to compel delinquent taxpayers to bear their proportion of the burdens of taxation, then, if by reason of defective administration of the law one delinquent is caught while another escapes, “it does not lie in the mouth of the one called upon to make his contribution to complain that some other person has not been coerced into a like contribution. ’ ’
In the recent case of State ex rel. v. K. C. & M. Ry. & B. Co., 117 Ark. 606, this court to sustain its view that the act was valid, cited and relied principally upon Weyerhaueser v. Minnesota, 176 U. S. 550, and Florida Cent., etc., Rd. Co. v. Beynolds, 183 U. S. 471.
In the Minnesota case the legislation arose under a statute which operated alike upon all taxpayers. There was no classification, hence ho discrimination on the part of the sovereign by which one class of delinquents, towit, corporations, could be made to pay while another class of delinquents, towit, individuals, who stood in precisely the same attitude as to the duty to pay taxes, was exempt.
The Florida case arose under a statute which provided for the collection of taxes “upon any railroads and the properties thereof for the years 1879, 1880, 1881.” Here was a classification which all the authorities recognize as perfectly legitimate and reasonable for taxation purposes.
As is well expressed by Judge Caldwell, speaking for the court, in Northern Pac. R. Co. v. Walker, 47 Fed. R. 681, “The franchise of railroad companies, and their earnings, and railroad property, may well be classed by themselves for purposes of taxation and taxed by a different method or rule from that applied to other property.” Of course, all that is said in the opinion in the above cases must be interpreted in the light of the facts upon which the opinion is based. The Constitution of Florida is unlike ours in that it provides only “for a unform rate of taxation.” Not only was it reasonable that railroads should stand in a class by themselves, but the act specially mentions the years that such railroad had escaped taxation. On this feature of the act the court said: “A wrong intent can not be imputed to the Legislature. It may have found that the railroad delinquent tax was large” (for three years) “and the delinquent tax on other property was small and not worth the trouble of provision therefor.” But it could hardly be said of the act under review that in 1913, when the Legislature made the act apply solely to corporations by striking out persons it did so for the reason that it found that Corporations, during all the years they had been allowed to do business in this State, had been delinquent in the payment of taxes while individuals had not. The very fact that the Legislature, for all this long period, made a discrimination against corporations shows a deliberate purpose to cast upon them an unequal burden of taxation. Speaking of the effect of the Fourteenth Amendment on such a state of facts, the court further said: “Doubtless it would prohibit a State from selecting some obnoxious person and casting upon his property the sole burden of taxation, or a burden differing from that case upon others where property was similarly situated, but it does not prevent a State from exercising its judgment as to the property to be taxed and the modes of taxation, providing all property similarly situated is treated in the same way.”
Therefore, I am unable to see how the Minnesota case and the Florida case, supra, have any application or give any support to the view that the “Back Tax” Act of 1887, as amended, is a valid enactment. As I stated in tlie beginning, tbe act shows on its face that it is in plain violation of the “equal and uniform” clause of our Constitution, and, being so, is also in plain violation of the “ equal protéction” clause of the Fourteenth Amendment to the Constitution of the United States.