(dissenting in part): My views can best be expressed in a separate opinion. The principle ruled upon in syllabus 2 of the court’s opinion is better stated from another viewpoint, i. e.: A state is not authorized to tax the shares of stock of national banks at a rate greater than other moneyed capital in the hands of its individual citizens which is used by them in competition with the business of national banks.
I regard syllabus 3 as an erroneous statement of the law. The federal statute (Rev. Stat. 5219) does not provide how the state shall tax the “moneyed capital” of its citizens. In effect the federal statute says to the states:' Tax the “moneyed capital” of- your individual citizens as you please, and at any rate you choose, but when you have fixed the rate for such “moneyed capital” the shares of stock of national banks cannot be taxed at a greater rate. Syllabus 4 should have been omitted as not being within the issues of this case. In effect it holds that because domestic corporations taxed under R. S. 79-310 are allowed the benefit of the mortgage-registration law (Laws 1925, ch. 273), and perhaps other benefits, not allowed in computing (under R. S. 79-1101, amended by ch. 276, Laws 19251 the value for tax purposes of the shares of stock of *618banks, an unjust discrimination against such shares results. I am not ready to say the statement is incorrect, but these statutes, substantially in their present form on the point here made, have been the law of this state since 1876, and their validity has been sustained either specifically or inferentially by repeated decisions of this court.
As I read syllabus 4, all this is scrambled. Before concurring in so holding I would want the question squarely presented and fully argued. I am confident there is much more to be considered on the question than has been presented by the briefs in this case. More than that, a ruling on this point is not necessary for the decision of the case before us. While plaintiff in the application for the writ in this case mentioned this question, it seems clear to me that it was mentioned only as making weight. The tax as computed and tendered by plaintiff, and which he asks us to require defendants to accept, was not computed on that theory; plaintiff is not seeking to derive any financial benefit of such discrimination — if it exists— and all that was said in the arguments and briefs on this question was for its bearing on the other questions at issue. Syllabi 5 to 9 are in the main correct. It seems to me, however, that the treatment of the validity of chapter 326 of the Laws of 1927 in the opinion lacks something of fullness and accuracy. The validity of this statute must be determined by measuring it with our constitution (§1, art. 11). This constitutional provision, so far as this statute is concerned, authorized the legislature to classify two kinds of property: (1) money, (2) notes and other evidences of debt; and to tax the same uniformly as to class. The statute (Laws 1927, ch. 326) attempts to so classify and tax (1) money, and (2) “credits,” and defines those terms. So far as it defines, classifies and taxes money, the legislature acted within the constitutional grant of authority. The term “credits” as used in the statute must be construed to be tantamount to the term “notes and other evidences of debt” used in the constitution, or within the meaning of that term, to be within the authority granted to the legislature by the constitution. To the extent, if at all, that the legislature, in defining the word “credits,” has gone beyond such constitutional grant of authority, the statute is to that extent unconstitutional. We now examine the definition of the word “credits” as used in the statute to see what parts of it are within the authority granted by the constitution to the legislature to classify and tax “. . . notes and other evidences of debt . . . uniformly as to class.” *619The statute defines “credits” to mean and include “notes,” “mortgages” (other than real-estate mortgages on which the registration fee tax has been paid), “bonds” (but see ch. 327, Laws 1927, as to governmental obligations), “claims secured by deed,” “every liquidated claim and demand for money,” “or other valuable thing” (necessarily of the same general nature). As to the kinds of property so far enumerated, they are clearly within the meaning of the term used in the constitution. “Credits” is further defined by the statute to mean and include “foreign stock,” “contracts,” “shares of stock in building and loan associations, other than permanent stock.” These kinds of property may be “evidences of debt” or may not; when they do evidence debt they are properly included in the legislative grant of authority; when they do not do so they are not within it. The statute also defines “credits” to mean and include “annuities,” “royalties,” “copyrights.” It is difficult for me to see how any of these can be “evidences of debt”; as to these it would seem the legislature is attempting to tax income. But whatever may have been the legislative view, they are within the constitutional grant of authority to the extent only that they are “evidences of debt.”
The statute then provides (§ 1, first proviso) that the act shall not apply “to any national banking association or the stock thereof.” The statute could not have been made to apply to that kind of property if the legislature had attempted to so apply it, for the reason that the constitution did not authorize the legislature to separately classify and tax that kind of property, it not being property of a kind which is included within the meaning of any of the terms (1) mineral products, (2) money, (3) mortgages, (4) notes and other evidences of debt, named in the constitution. The only virtue of putting this in the statute is that it clearly shows a legislative purpose not to include that kind of property in the provisions of the statute. The other portions of the first and second provisos to section 1 show a legislative purpose to further classify “money” and “credits” with respect to the persons who own and use it. This clearly is not within the constitutional grant of legislative authority. These provisions, therefore, are unconstitutional and void. The result is, the statute applies to all money and notes and other evidences of debt, as defined in the statute (when some of the statutory terms are properly construed) without regard to. who may own them. And in view of section 11 of the act, the unconstitutional provisions contained therein must be disregarded and *620the remainder of the act held valid. On this point I concur in what is said in the opinion of the court, and especially because of the previous holding of this court on similar sections in other statutes.
Rather than to comment further on the opinion of the court I prefer to state my own views of this case as follows:
The question before us is one of discrimination in taxation. Briefly, plaintiff’s contentions may be thus stated: That state banks transact substantially the same kind of business as do national banks, and there is no just or legal reason for discrimination in the taxation of their shares of stock. In effect this contention is conceded. Plaintiff further contends that by the force and application of the federal statute (Rev. Stat. 5219), and by reason of the provisions of our constitution (§1, art. 11), and our mortgage-registration law (Laws 1925, ch. 273), and our intangible-tax law (Laws 1927, ch. 326), the shares of stock of national banks cannot be taxed at a greater rate than that provided by the intangible-tax law, which is 50 cents per $100 valuation, and that this has been judicially determined by the federal courts in the case of The Central Nat. Bank v. McFarland, 20 F. (2d) 416; 26 F. (2d) 890. Plaintiff computed the tax in question at the intangible tax rate and tendered payment of the sum so computed, which defendants refused to accept for the reason that the shares of stock had been taxed at the general-property rate, which was $3.50 per $100 valuation. Defendants contend that the decisions of the federal court in the case just mentioned are void for the want of jurisdiction, and that the interpretation of a statute of this state is a function and duty of this court as distinct from the federal courts. Not caring to discuss questions of procedure, I shall, for the purposes of this opinion only, concede that defendants are correct on both of these points, but even so it does not follow that the federal courts did not point out the proper application of the statutory and constitutional provisions above mentioned. Defendants further contend that the shares of stock of the banks, both state and national, have been assessed as provided by the statutes of this state (Laws 1925, ch. 276), and that taxes have been levied thereon each year at the general-property rate in accordance with our constitution and our statutes, and that this is the only lawful method for the taxation of such shares of stock, hence that there is no discrimination. The question before us therefore narrows down to whether the discrimination exists as contended by plaintiff; for no one contends that such a *621gross discrimination was designed, or is permitted, by the constitution and statutes of our state.
Our constitution (§ 1, art. 11) makes it the duty of our legislature to provide “a uniform and equal rate of assessment and taxation,” but authorizes the legislature to classify and tax “uniformly as to class” four kinds of property; namely: (1) mineral products, (2) money, (3) mortgages, (4) notes and other evidences of debt. A share of stock in a state or national bank, or in any other corporation, is not.any one of these. It is a certificate evidencing the ownership of a unit of a corporate entity. (14 C. J. 388 et seq.; Bank v. Geary County, 102 Kan. 334, 170 Pac. 33; Dutton v. National Bank, 53 Kan. 440, 36 Pac. 719.) It is therefore not property of a kind which our constitution authorizes the legislature to classify .for the purpose of taxation, and our legislature has not so attempted to classify and tax it. It necessarily follows that when its value is ascertained it takes the general-property rate. The value of the shares of stock in banks, both state and national, is determined in accordance with chapter 276 of the Laws of 1925 (which is the latest amendment of section 22, chapter 34, Laws 1876), which provides for their assessment. Hence, considering nothing but our constitution and this statute (Laws 1925, ch. 276), the general-property tax rate applies to shares of stock of banks without discrimination between those of state banks and those of national banks.
Deeming itself authorized by our constitution (§ 1, art. 11) to do so, our legislature enacted the mortgage-registration law (Laws' 1925, ch. 273), by which a tax is paid on real-estate mortgages when they are filed for record and they are not otherwise taxable; and also passed the intangible-tax law (Laws 1927, ch. 326, being an amendment of chapter 277 of the Laws 1925, as amended by chapter 278 of the Laws 1925), by which money and “credits” (perhaps meaning by that term “notes and other evidences of debt” as used in the constitution), as therein defined were taxed at 50 cents per $100 valuation. The provisions of section 1 of that act, attempting further to classify money and credits with respect to ownership, are not within the grant of authority given to the legislature by our constitution (§1, art. JL1), and are therefore unconstitutional and void, but this holding by the force of section 11 of the act does not render the remainder of the statute invalid, although some of the other terms used therein need to be judicially construed. The legis*622lature also enacted a law (Laws 1927, ch. 327) classifying and providing for the taxation of obligations of governmental bodies. For the purposes of this opinion I shall assume, as evidently counsel who have appeared in this case have assumed, that our constitution (§ 1, art. 11) authorized the legislature to make the classifications of property, which it sought to make by these statutes, and to determine the rates of taxation therein provided. None of these statutes attempted to separately classify and tax at a rate other than the general-property tax rate the shares of stock of banks or of other corporations. Collectively they did classify and tax, at a rate much less than the general-property tax rate, all of the moneyed capital in the state in the form of money, mortgages on real estate, notes and other evidences of debt, including governmental obligations. While the rate varies on the different kinds of property so classified by the legislature, none of it exceeds 50 cents per $100 valuation. Now, assuming that our legislature was authorized by our constitution to make the classifications of property and to provide different tax rates therefor, as it has done by the mortgage-registration law, the intangible-tax law, and the law for taxing governmental obligations, there is nothing wrong with that scheme of taxation so far as our constitution and statutes are concerned.
We must now consider the force and effect of the federal statute (Rev. Stat. 5219). It is a law supreme when compared with our state statutes, or even our state constitution (U. S. const., art. VI, 2d paragraph). This federal statute (Rev. Stat. 5219) provides the only method by which a state may tax the shares of stock of national banks. This has been definitely determined judicially, and we need not go further into the history of it. That statute, so far as here pertinent, provides that when the state taxes the shares of stock of national banks “. . . the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state coming into competition with the business of national banks. . Now when a state, by the provisions of its constitution and statutes, bundles up, as it were, all of the moneyed capital in the hands of individual citizens of the state (including partnerships and corporations other than banks and loan and trust companies), which does, by the use made •of it, come into competition with the business of national banks, and •classifies such property and taxes it at various rates as to class, none •of which rates exceeds 50 cents per $100 valuation, it is clear that to *623give force and effect to the federal statute the rate of taxation on the shares of stock of national banks cannot exceed 50 cents per $100 valuation. Any court, state or federal, indeed any individual, giving intelligent consideration to the question, is forced to that conclusion. The result is that the shares of stock of national banks cannot be taxed at a rate greater than 50 cents per $100 valuation. Since the shares of stock in state banks are property of the same kind, class and quality as shares of stock in national banks, it would be an unjust, unreasonable and unlawful discrimination against the shares of stock of state banks to tax them at $3.50 per $100 valuation. That is about all there is to this lawsuit.
As I am writing my own views, a few observations may not be out of place. Since shares of stock of banks are not authorized by our constitution (§ 1, art. 11) to be separately classified for the purpose of taxation, and under the scheme of taxation provided by our constitution and statutes such shares of stock constitute property of a kind which takes the general-property rate of taxation, the discrimination above noted in favor of the shares of stock of national banks and against the shares of stock of state banks is just as great and is just as unreasonable and unlawful a discrimination against all of the property of the state which is assessed and taxed at the general-property tax rate.
In what situation does this leave us? Simply this: Under our present constitution and statutes, and giving force to the federal statute (Rev. Stat. 5219), as we must do, we cannot have a valid tax (that is, one not unlawfully discriminatory) on any property in the state at a rate greater than that which can be lawfully made on the shares of stock of national banks. This, as we have heretofore seen, is measured by the rate provided by our statutes for the taxation of moneyed capital in the hands of individual citizens of the state which comes into competition with the business of national hanks, none of which is taxed at more than the intangible tax rate of 50 cents per $100 valuation. We all know, of course, that if no property in the state can be lawfully taxed at more than 50 cents per $100 valuation, the functions, not only of the state but of every subdivision of it, supported in the main by our general-property tax, will be seriously impaired.
How can this situation be remedied? Broadly speaking, it may be done in any of three ways: By (1) changing the federal statute (Rev. Stat. 5219); (2) changing our constitution (§1, art. 11), or *624our statutes (Laws 1925, ch. 273; Laws 1927, ch..326; Laws 1927, ch. 327), or some of them; or (3) raising the additional necessary-funds by methods other than a direct tax on property. Which changes, or combination of them, should be used involves the consideration of questions of economics and statecraft. To determine what should be done comes within the functions of the executive and legislative branches of our government rather than the judicial.