dissenting.
Plaintiff in error attacks a provision of an Arkansas statute,* on the ground that it is repugnant to the equal protection clause of the Fourteenth Amendment.
*701It directs that, where because of undervaluation there are overdue and unpaid taxes upon any property which belonged to a corporation at the time such taxes should have been assessed and paid, the Attorney General shall bring a suit to collect them unless the title passes to an individual before suit. No law of the State create? or permits the enforcement of any like or similar liability against the property of individuals. The fact that the property is owned by a corporation is the sole basis of the classification. The claim here is for additional taxes upon land, and the land alone is liable. The owner cannot be held for either the original or back taxes. See decision below, 175 Ark. 956, 973. Like lands of individuals are shown to have been grossly underassessed. And if such lands were owned by corporations, they Would be liable for back taxes.
The discrimination is deliberate. The statute, ipassed in 1887, is entitled “An Act to provide for the collection of overdue taxes from corporations doing business in this State.” It was amended in 1913. In State ex rel. Attorney General v. K. C. & M- Ry. and Bridge Co., 117 Ark. 606, the court said (p. 613): “ The object of the amendatory act of 1913 was to give a complete remedy for the *702recovery of back taxes due by a corporation upon any property then in the State, which belonged to any corporation at the time such taxes should have been properly assessed and paid. It takes away the right conferred by the original act to proceed against property where the title had passed to an individual, although it had been owned by a corporation when the assessment was made and the taxes were payable . And see concurring opinion, State ex rel. Attorney General v. Bodcaw Lumber Co., 128 Ark. 505, 523.
This suit was brought in 1925; its original purpose was to recover from plaintiff in error additional taxes, for each of the 10 years ending with 1924, on the value of the company’s “ capital stock or intangible property.’’ The complaint stated that plaintiff in error, had paid taxes upon its real and personal property. Tt alleged that the assessed value of its tangible property “upon which defendant had actually paid taxes as provided by statute ” was much less than the market value of its capital stock, and judgment was demanded against plaintiff in error for back taxes on such intangibles.
But it was found that the company had no property 'in Arkansas other than real estate, and about the same time the state supreme court, in State v. Lyon Oil and Refining Co., [1926] 171 Ark. 209, held that the capital stock of a foreign corporation which is neither located nor used within the State cannot be taxed therein.
Then the complaint was amended to allege that the company owned timber lands in Arkansas which had been underassessed in each of the 12 years ending with 1926. The chancery court charged the lands with back taxes. The supreme court held that there had been undervaluation of only a pdrt of the company’s lands and that the amount of back taxes imposed by the decree should be reduced accordingly.
*703Such taxes are imposed upon the sole ground that through mistake the original assessments were too low. The procedure for the enforcement of taxes on lands is not affected by the character of the owner; the State looks only to the land. Lands of individuals are as likely to ■be erroneously undervalued as are those belonging to corporations. But the law directs the Attorney General to collect back taxes not in all cases where the taxes originally levied and paid were based on undervaluation, but only where property belongs to corporations at the time of the assessment and also at time of suit. He is not permitted to bring suit to make such collections against lands owned by individuals even if they were owned by corporations when undertaxed. As here applied, the Act singles out the lands of a corporation, leaving those of natural persons free from such claims. Transfer to an individual, whenever made, prevents the operation of the Act.
This case cannot be distinguished from Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389. There the tax in controversy was imposed upon the corporation’s gross receipts derived from the -operation of taxicabs. But the gross receipts of individuals in the same line of business were not taxed. And for that reason the law was held repugnant to the equal protection clause. The Court said (p. 402): “ Here the tax is one that can be laid upon receipts belonging to a natural person quite as conveniently as upon those of a corporation. It is not peculiarly applicable to corporations as are taxes on their capital stock or franchises! .... The character of the owner is the sole fact on which the distinction and discrimination are made to depend. The tax is imposed merely because the owner is a corporation. The discrimination is not justified by any difference ... in the situation or character of the property employed.” It is not pretended that such back taxes on lands of individuals may not be imposed as con*704veniently as upon those of corporations. The Arkansas law imposes a tax liability on lands of a corporation to which lands of an individual are not subjected. That case rules this one.
But there are cited in support. of the decision below Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526; New York State v. Barker, 179 U. S. 279, 285; Florida Central, &c. R. R. Co. v. Reynolds, 183 U. S. 471, 480; and Fort Smith Lumber Co. v. Arkansas, 251 U. S. 532, 534.
Winona & St. Peter Land Co. v. Minnesota, supra, did not present any question under the equal protection clause. A state law provided generally for the assessment and taxation of both real and personal property which had been omitted from the tax roll. Lands of the company were assessed under the Act. It insisted (p. 528) that the Act violated the contract clause and the due process clause.
In support of the latter contention, the company argued that, as to back taxes on personal property, the Act was invalid because it failed to provide for notice to owners before the charges were fixed against them; that it could not be assumed that the legislature would attempt to enforce back taxes against lands alone, and that therefore the whole Act fell. But the state court declined to pass upon that contention, 40 Minn. 512, 521, and held that in any event back taxes on personal property might be enforced by an ordinary personal action. This court said (p. 539): “ It seems to us . . that the assumption that it cannot be believed that the legislature would never seek to provide for the collection of back taxes on real property without at the same time including therein a like provision for collecting back taxes on- personal property, cannot be sustained. The case is different from that of an ordinary tax law in which there may be some foundation for the claim that the legislature .is expected *705to make no discrimination, and would not attempt to provide for the collection of taxes on one kind of property without also making provision for collection of taxes on all other property equally subject to taxation . . . and it may well be that the legislature in view of the probabilities of changes in the title or situs of personal property might deem it unwise to attempt to charge it with back taxes, while at the same time, by reason of the stationary character of real estate, it might elect to proceed against that.” The court concluded that in any event it was for the state court to determine' whether the Act was severable.
Both in Minnesota and Arkansas, taxes and back taxes on personal property are enforceable against the owner; taxes and back taxes on land are enforced only against the land. The Minnesota Act did not attempt to make any ■ classification. Moreover, a discrimination between personal property and land is essentially different from that attempted by the Arkansas statute. The equal protection clause does not require that, for purposes of taxation, land must be put .in the class with merchandise, moneys, credits, livestock and other personal property. The differences in kind are sufficient to warrant classification.
In New York State v. Barker, supra, the controversy concerned an assessment of a corporation’s capital stock. It was a proceeding against the corporation itself. There was no question in the case of increasing, reassessing or collecting taxes on land. The real estate of corporations and individuals was directly assessed, and the law required this assessment to be at actual value. In addition, there was imposed on corporations a capital stock tax, to be determined by deducting from total value of all its property, tangible and intangible, its debts and the assessed value of real estate, the remainder to be taxed as capital stock.
*706The taxing officers found the “ actual value ” of real estate to be $965,000 and added other property, making total gross assets, $1,095,049; they deducted debts, $329,050, and “ assessed value ” of real estate, $600,000, leaving $165,999, to be taxed as capital stock. The corporation insisted that in determining total gross assets the assessed value of the real estate should be substitútéd for its actual value; that would leave nothing to be taxed as capital stock.
Its contention was that the taking-of its real estate at actual value instead of assessed value denied to it equal protection of the laws. This court pointed out (p. 284) that the failure to assess the company’s real estate at its actual value for separate taxation and the use of actual value to ascertain the capital stock tax could work no denial of equal protection if the real estate of individuals was in fact assessed at its full and true value as required by law. And it said: “There is no allegation . . that there has been any undervaluation of real estate, either with regard to individuals or corporations. . . . (p. 285). But we are . . asked . . in the absence of allegations or proof of habitual, or indeed of any undervaluatipn, to assume or take judicial notice of its existence, notwithstanding such undervaluation .would constitute a clear violation of the law of the State. . . (p. 286). Whether, if the case were proved, as assumed by counsel, it would in fact amount to any such discrimination against corporations as to work a denial to the plaintiff of the equal protection of the laws, is a question not raised by this record, and, therefore, not necessary to be decided.” It requires no discussion to show that this case is not in point.
Florida Central, &c. Railroad Co. v. Reynolds, supra, considered a Florida statute providing for collection of back taxes on railroad properties. The single question was (p. 474) whether to reach backward and collect taxes *707from certain kinds of property without also making provision for collecting taxes on other kinds of property transgressed the equal protection clause, it was held, as is well understood, that railroads so differ from other kinds of property that they may be separately classified. The case has no bearing here.
In Fort Smith Lumber Co. v. Arkansas, supra, the suit was to enforce an obligation of the corporation itself and not merely a claim for taxes against its land. The company in that case owned stock in two other Arkansas corporations and claimed it was entitled to omit such shares, from the taxable value of its own stock. It defended on the ground that individuals are not taxed on such stock or subject to suits for back taxes. The Court said: “If the State of Arkansas wished to discourage but not to forbid the holding of stock in one corporation by another and- sought, to attain the result by this tax or if it simply saw fit to make corporations pay for the privilege, there would be nothing in the Constitution to hinder. . . . The same is true with regard to confining the recovery of back taxes to those due. from corporations. - It is to be presumed, until the contrary appears, that there .were reasons for more strenuous efforts to collect admitted dues from corporations than- in other cases,, and we cannot pronounce it an unlawful policy on the part of the State.”
This court assumed that the special burden was imposed in pursuit of a definite purpose on the part of the State in respect of incorporated owners of stock in Arkansas corporations. That decision rests upon the ground that the tax was peculiarly applicable to corporations. But a tax on land is not.
As the back taxes claimed are enforceable only against the land, there is no basis for the suggestion that there exists here any reason for more strenuous efforts to collect from corporations than from natural persons.
*708And there is no basis for an assumption like that made in the Fort Smith Lumber Co. case. The classification, at least when applied to land, is fanciful and capricious. Liggett Co. v. Baldridge, 278 U. S. 105, 114.
The decree should be reversed.
The Chief Justice and Me. Justice Van Devanter. concur in this opinion.The original Act was passed in 1887.-Laws 1887, p. 33. There was an amendment in 1911, which is not material here. Laws 1911, p. 324. It was again amended in 1913. Laws 1913, p. 724. (The words added by the last amendment' are italicized, and those omitted by it are included in brackets.)
“ Where the Attorney General is satisfied from his own investigation or it is made to appear to him by the statement in writing of any reputable taxpayer of the State, that in consequence of the failure from any cause to assess and levy taxes, or because of any pretended assessment and levy of taxes upon any basis of valuation other than the true value in money of any property hereinafter mentioned or because of any inadequate or insufficient valuation or assessment of such property, or undervaluation thereof, or from any other cause, that there are overdue and unpaid taxes owing to the State, *701or any county or municipal corporation, or road district, or school district, by any corporation, [or] upon any property now in this State which belonged to any corporation at the time such'taxes should have been properly assessed and paid, it shall become his duty to at once institute a suit or suits in chancery in the name'of the State of Arkansas, for the collection of-the same, in any county in which the corporation owing such taxes may be found, or in any county in which any part of such property as. may have escaped the payment in whole or in part of the taxes as aforesaid may be situated, in which suit or suits the corporation owing such taxes, or any, corporation [or person] claiming an interest in any such property as may have escaped taxation as aforesaid, shall be made a party defendant. ” § 10204 Crawford & Moses’ Digest,