CONCURRING OPINION I concur in the result reached by the majority, but cannot agree that the act was not intended to apply to persons "signing, executing and issuing intangibles." The language of section 2 is too clear to be open to construction.
In Lutz, Attorney General, et al. v. Arnold et al. (1935),208 Ind. 480, 193 N.E. 840, the law was held valid as an excise tax measure, and it must be so considered. In my opinion, section 2 provides for a tax to be paid by every person residing or domiciled in the state, who signs, executes, and issues an intangible, but the amount of the tax to be paid by such person must be measured by intangibles signed, executed, and issued by the person, and owned or controlled, within the state, as *Page 463 provided in the last clause of section 2. It follows that, since the intangibles signed, executed, and issued in this case were never owned or controlled by any person within the state, there is no tax due by reason of signing, executing, and issuing those intangibles. There is no liability for tax until the intangibles are signed, executed, and issued, and it may be assumed that intangibles are not issued until they are delivered. If when delivered, so that they are owned or controlled by some person other than the issuer, they are not owned or controlled within the state, there is nothing by which to measure the tax, and there is no tax.
The effect of this provision is that persons signing, executing, and issuing intangibles to owners or holders within the state are taxed, and those signing, executing, and issuing intangibles to holders outside of the state are not taxed, a discrimination in favor of the latter group. Whether there is a reasonable basis for this discrimination may well be doubted. The question is not here presented, but, unless there is a reasonable basis for discrimination, the Constitution would forbid the tax upon the one group while the other is exempt.