(dissenting in part): With the first seven paragraphs of the syllabus, and what is said in the opinion in respect thereto, I am in general agreement. I cannot concur in the eighth paragraph of the syllabus, what is said in the opinion with respect to it, nor with the conclusion reached by the court.
The question is whether under our constitutional provisions with reference to taxation, the legislature may enact valid legislation declaring shares of stock in a foreign corporation to be “notes and other evidences of debt.”
As originally adopted, article 11, section 1, of our constitution stated:
“The legislature shall provide for a uniform and equal rate of assessment and taxation,” etc.
From the inception of our state government, down to the time the above section was amended, it was repeatedly held that by reason of it, the legislature was without power to classify property in such manner that one class would be assessed or taxed on a different rate basis than another. In some opinions may be found statements that a permissible construction would have allowed the legislature considerable leeway, but no opinion of this court has so held.
In 1915 the legislature attempted by chapter 250 of the session laws of that year to provide for the payment of a registration tax on mortgages, the constitutionality of the act being challenged in Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977. In that opinion is a rather exhaustive review of former decisions, in which it is said:
“The constitutional command is that the legislature shall provide for a uniform and equal rate of assessment and taxation. Assessment is a prerequisite to the application of any rate of taxation, and assessment includes listing and valuation. This is fundamental and cannot be evaded by any shift 'or device whatever.” (p. 53.)
After discussing the power to create exemptions, it was said:
“The notion that property taxes might be abandoned and that public revenues might be raised by franchise, privilege, and occupation taxes, and other taxes of like kind, was not present in the minds of the framers of the constitution or of the people who adopted it. To their minds the property of the state *20was to be taxed as a matter of course, and all property was to be taxed according to its value, except that property which served the state in some peculiar way, whereby public benefits resulted equivalent to the benefits derived from taxes, might be exempted; but exemptions of this character could not be employed to build up large accumulations of untaxed property contrary to the fixed rule requiring a uniform and equal rate of assessment and of taxation.” (p. 64.)
The final conclusion was:
“The result is that the statute undertakes to classify the property of the state for the purposes of taxation, to place real-estate mortgages, or, speaking accurately, some real-estate mortgages, in a class by themselves, and to subject such mortgages to a specific tax, all contrary to the express command of the constitution. This cannot be done, and the statute is void.” (p. 77.)
The above case was decided in 1915. Although there had been some agitation for a change in the constitutional provision prior thereto, thereafter more determined efforts were made, and the result was that in 1924 the constitution was amended so that the legislature might classify and 'tax uniformly as to class “mineral products, money, mortgages, notes and other evidences of debt,” and the question now under consideration arises under the amendment.
Thereafter, a series of acts was passed attempting to make classification and tax accordingly, i. e., mortgage registration taxes, and the so-called intangible tax laws. I shall devote no time to discussion of misuse of the word “intangible,” nor to the proposition that the constitutional amendment did not refer to intangibles. An outgrowth of these statutes was the flood of cases wherein national banks, by virtue of the laws of the United States, sought and obtained the benefits of the rates specified in the statutes classifying the so-called “intangibles.”
The effect of stockholders in national banks obtaining a rate lower than the ad valorem caused a claim to be advanced by stockholders of state banks that they were being discriminated against, and the action of Voran v. Wright followed. Opinion on the first submission is reported in 129 Kan. 1, 281 Pac. 938, and on rehearing in 129 Kan. 601, 284 Pac. 807. Whether that opinion is legally sound, or whether the views expressed by Mr. Justice Harvey in his dissent should have been followed, I shall not discuss. It must be conceded that until the court overrules the opinion, it states the law. In effect, it held that stock in a state bank shall be taxed at the so-called intangible rate. Fundamentally, the opinion seems to me to be based on lack of uniformity which would be accorded shares of national and state banks if a different conclusion had been reached, and not on the basis that *21shares of stock were the types of property that could be classified and taxed under the constitution as amended. It is said in the opinion:
“It is not seriously contended by anyone that shares of stock are within the definition given in the statute of money or credits, neither do they come under the heading of notes or other evidence of debt. They simply represent the proportionate interest of the holder in the earnings and the final distribution of the assets of the company, and not a distinct title to the money or property of the company (7 R. C. L. 304).” (p. 612.)
The same question came before the court under a different factual situation and was considered in Stevenson v. Metsker, 130 Kan. 251, 286 Pac. 673, and again Mr. Justice Harvey dissented. For present purposes I shall ignore the dissent, for the court’s opinion has not been overruled. There it was held shares of stock in a state bank should be taxed at the so-called intangible rate, the basis of the opinion being that the assets of a bank, reflected in determining value of stock for purposes of taxation, consist almost wholly of money, notes, bonds, mortgages and evidences of debt, referred to in the opinion as intangibles.
In Ryan v. State Tax Commission, 132 Kan. 1, 294 Pac. 938, the question was whether shares of building and loan stock, other than permanent shares, could be classified and taxed under the constitutional amendment. In the opinion it was said:
“The court is obliged to say the attempted classification in the statutes of 1925 and 1927 [so-called intangible tax acts] of building and loan association shares, other than permanent shares, as credits, was not permissible under the amended constitution.” (p. 3.)
It may here be remarked that under the building and loan statutes every class of stock (except permanent stock) which may be issued is withdrawable as to its value, and most of the shares issued have a fixed maturity date, and, without pursuing the matter fully, have many more aspects of an evidence of debt than can possibly be attributed to shares in an ordinary corporation. Notwithstanding, this court, without a dissent, held that classification of such shares was not within the purview of the constitution as amended.
Citizens Bank v. State Tax Commission, 132 Kan. 5, 294 Pac. 940, was an action brought to settle questions relating to taxation of a bank, a trust company and a mortgage company. Without going into detail, it may be said the court adhered to its opinion in Voran v. Wright, and Stevenson v. Metsker, supra, and in effect held the character of the assets of the corporation determined the matter. It was said, however, that—
*22“Shares of corporate stock are not mineral, nor mortgage, nor note, nor other evidence of indebtedness excepted by the amended constitution from the requirement of uniform and equal rate of assessment. Shares of corporate stock are simply property interests of shareholders, on equal footing with the common unclassified property of the state.” (p. 14.)
No other cases involving taxation of shares in a corporation at so-called intangible tax rates are called to our attention. It will be noticed that each of the cases mentioned involved stock in corporations, the assets of which were largely included in the constitutional language of money, mortgages, notes and other evidences of debt, and that the decisions, to a great extent, were based on that fundamental fact.
Whether the basis for the above decisions was logically and legally sound or not, it was apparent that under them stock in a foreign corporation was not entitled to be taxed at other than the ad valorem rate. In order that such stocks might be taxed at the so-called intangible rate, some change must be made, either in the constitution or in the statute. To accomplish that result the legislature, by the enactment of the statute now under consideration, declared a share of stock to be something that it is not — an evidence of debt. If that is permissible, there is no limit to the extent of its fiats.
It may be suggested the legislature has heretofore passed acts under which, for purposes of taxation, property which might otherwise be returnable as real property is to be considered as personal property, e. g., Laws 1898 Special Session, ch. 37, § 1, G. S. 1935, 79-322, and property which might otherwise be returnable as personal property is to be considered as real property, e. g., Laws 1911, ch. 316, § 22, G. S. 1935, 79-422. In those instances, however, no effort was made to classify the property in any manner so that the amount of taxes due would be other than at the ad valorem rate applied to the full assessed value of the property. In the instant case the statute effects a change in manner of assessment, and makes applicable a rate of taxation different from that applied either to real or personal property generally.
The court’s opinion, as I understand it, is based on the general proposition that the adopters of the constitutional amendment thought the amendment covered more than it stated, and something much different than it stated — that they believed it covered all sorts of intangible property and that stock in a corporation is intangible. To argue to the contrary is said to be legalistic. I can*23not agree. Limited to the issues in this case, the court’s opinion would lead to the conclusion the people deliberately voted an amendment to permit shares of stock in a foreign corporation to be taxed at a different rate than the corporation might have had to pay had it been domiciled here.
Our cases deal with financial corporations. How different is the case now before us? The stock involved is that of a telephone company. Such companies at least are not supposed to be financial institutions. Their assets are poles, wires, conduits, switchboards, telephone instruments, etc. No doubt they have some bona fide intangibles such as franchises, rights of way, etc., but it is a fact beyond argument that the bulk of their assets is physical assets that cannot be called either intangibles, or money, mortgages, notes or evidence of debt. With more plausibility some of their equipment might be classified as “mineral products” under the amendment, but the legislature has not passed any statute making any classification under that particular permission. Neither should it be assumed the adopters of the amendment were ignorant of the fact that in numbers and assets many more foreign corporations were engaged in commercial ventures than in financial affairs.
There can be no argument but that our constitution restricts rather than grants power. But that the constitutional provision under consideration here, both before and since its amendment in 1924, was and is a restriction on the power of the legislature to classify property for purposes of taxation, is not open to debate, unless we see fit to overturn our holdings from the very beginning of statehood, Hines et al. v. City of Leavenworth, 3 Kan. 186, being one of the first, and the annotations in various of our statutes showing many others. Restrictive constitutional provisions should control the legislature just as restrictive legislative enactments control the people. When the constitution prohibits, the prohibition should be observed. Once it be conceded the legislature can make a thing something that it is not, then it must likewise be conceded that by such process every restriction contained in the constitution and every right granted or preserved by it may be avoided by the simple process of giving to the particular subject a name or appellation different from that usually associated with it. I do not concede that to be within the legislative power.
I am authorized to say that Mr. Justice Harvey concurs in this dissent.