On Motion for Rehearing.
Appellees, in a motion for rehearing filed hy them, very earnestly contend that we have erred in holding that the evidence in this case fails to show that the International & Groat Northern Railway Company has any intangible property or intangible values subject to taxation under the laws of this state. No attempt is made in the motion to justify the holding of the tax board that the so-called “rule of three” formula, used by the board for the purpose of ascertaining the value of the stock of the railway company, demonstrated that the stock is worth the amount found by the board. It is urged, however, that the record does not justify our conclusion that the board relied solely upon the application of the formula to show the value of the stock, and that if the formula be discarded there is evidence to sustain the finding of the board as to the value of the stock, and that the railway company owned intangible property in this state of more than $10,000,1)00 in value.
We cannot agree with either of these contentions. We think the record as a whole shows conclusively that the board relied solely upon the mathematical result obtained by the axjplieation of the formula in fixing the value of the stock of the railway company, and the intangible values were found by the board by deducting from the aggregate of the value of the stock so found and the value of the lien indebtedness of the company, the value of its tangible property. Mr. Bagly, state tax commissioner, the only member of the state tax board who testified in the case, stated that in fixing the intangible values of the railway company the board considered all the evidence before it, but he failed to state what evidence the board had before it showing, or tending to show, that the railway company had any intangible value, and no such evidence was introduced upon the trial. He insisted that the use of the formula, as shown in our main opinion, was a rational and scientific method of arriving at the true value of the stock of the railway company. Upon cross-examination he was asked how stock that had never paid a dividend could be worth 2.68 times its face value, and if the board did not fix the value of the stock by applying the formula, and he replied; “Yes, sir; we did on the formula add stuck to the formula.” As stated in our main opinion, the true value of the stock could not possibly be ascertained by the method or formula used by the tax board, and there is no evidence to sustain a finding that the stock was worth more than its face value. This being so, no intangible value is shown by subtracting the value of the tangible property of the company from ’the sum of the value of the stock and lien indebtedness of the company. In our main opinion we say that the value of the tangible properties of the railway company fixed by the state Railroad Commission was “shown by the undisputed evidence to be their true value.” This statement is not accurate. What we had in mind and intended to say was that the undisputed evidence shows that the value of the tangible properties of the railway company was not less than the amount fixed by the Railroad Commission. The only evidence tending to show that it was worth less was the tax- rendition values, made by the company. The great preponderance of the evidence shows that the value was largely in excess of the amount fixed by the Commission.
Unless we adopt appellees’ theory that the tax board is authorized under the intangible tax statute of this state to assess as intangible values the value of tangible property of a railroad in excess of the value for which the tangibles are assessed for taxes, or that such board can make an “arbitrary” finding of tangible values, the finding of the board that the International & Great Northern Railway Company had intangible property of any value at the time the assessment in question was made cannot be sustained. We cannot adopt either of these theories of appellees, and feel constrained to adhere to the conclusions stated in our main opinion.
Appellants have presented a motion asking us to correct that portion of our main opinion in which we state that there was evidence to sustain, the finding of the trial court:
“That, taking the Railroad Commission’s valuation of the physical properties of the railway in Harris county as a basis, the total value of the property assessed against the railway in Harris county, including the intangible values, did not amount to a greater per cent, of the true value of the tangible property of the railway than the per cent, at which other tangible property in said county was assessed for taxation.”
The ground on which appellants complain of this statement is that the evidence upon which the trial judge based his finding as to the value of the tangible property of the railway in Harris county was the testimony of Mr. Parker as to the cost of reproduction of the tracks, depot building, and other permanent improvements used by the railway in the operation of its road in said county, and the testimony of the witness Kelly as to the value of real estate abutting upon that owned and occupied by the railway. The contention is made that the testimony of neither of these witnesses was admissible for the purpose of showing the value of the railway property, and that the finding of the trial court based upon such testimony, which was admitted over the objection of appellants, was without evidence to support it.
We did not, in our main opinion, pass *1052upon appellants’ assignments complaining of the admission of the above-stated testimony, and we do not find it necessary now to decide the questions presented by said assignments. The trial court expressly states in his findings of fact that he did not consider the testimony as to the value of abutting property in fixing the value of land held and used by the railway company for railway purposes only, but only considered such testimony in fixing the value of land owned by the railway which is not now used for such purposes and may never be so used, and which “is reasonably adapted to use for general commercial purposes.” We think this testimony could be properly considered in finding the value of real estate owned by the railway company, but not used for railway purposes, and which may never be needed for such use. There was testimony other than that of Mr. Parker, above stated, which sustains the findings of the trial court as to the value of the railway tracks, buildings, and other superstructures in said county, and we cannot say that the findings of the court were based in whole or in part upon the testimony of Mr. Parker.
Appellants further complain of our holding that the intangible tax statute, under which the assessment complained of in this suit was made, is not unconstitutional on the ground that it authorizes a double assessment of intangible property. We do not care to add anything to what was said in our main opinion in overruling the assignment presenting this question.
Our conclusion is that both motions should be refused; and it has been so ordered.