I. I concur with our learned brother in the disposition that he makes of the term "surplus" as used in the Act of 1917, Law 1917, p. 237. I agree with him that the purpose of the law was merely to fix a basis for a franchise tax, and that the word "surplus" as therein used means the property used in theSection 10. business, in excess of the capital stock, without consideration of debts or liabilities. But I have had trouble with Section 10 of the act, in determining whether or not the corporation here involved had to report such "surplus," and thereby subject it to the franchise tax. This is the reason for this separate concurrence, and an analysis of the Act itself, which follows. In this analysis, we shall confine ourselves to those portions of the Act which relates solely to a Missouri corporation, which employes all its capital stock, and other property in this State, for such is the status of the complaining corporation here.
II. The Act of 1917, supra, is composed of 14 sections, including the section which repeals previous conflicting laws. Now taking a Missouri corporation which employs all that it has (capital stock and other property) in this State, let us get the applicatory law. With the exception of the sense in which he term "surplus" *Page 228 is used in the act, and the further exception of the conglomerated phrases of Section 10 of the act, the law is reasonably clear. It covers several classes of corporations and refers to fixed fees as to some and franchise taxes as to others.
Section 1 of the act refers to six classes of corporation: (1) Missouri corporations, which employ all their stock and other property in Missouri; (2) Missouri corporations which employ only a part of their stock, and other property in Missouri; (3) foreign corporations; (4) corporations not organized for profit; (5) express companies, and (6) a class of insurance companies. As to class one, supra, this section reads: "Every corporation organized under the laws of this State shall, in addition to all other fees and taxes now required or paid, pay an annual franchise tax to the State of Missouri equal to three-fortieths of one per cent of the par value of its outstanding stock and surplus."
The 4th, 5th and 6th classes, supra, are exempted in the proviso of the section, for reasons which are clear. Section 2 then thus provides:
"Every corporation liable to the tax prescribed in the foregoing section shall make a report in writing to the Missouri Tax Commission, if it is in existence, and if not, then to the State Board of Equalization, annually on or before the first day of February, in such form as said Commission or said Board of Equalization may prescribe. Such report shall be signed and sworn to before an officer duly authorized to administer oaths by the president, vice-president, secretary, treasurer or general manager of the corporation and shall contain the following:
"1. Name of corporation.
"2. The location of its principal business office.
"3. The names of its president, vice-president, secretary, treasurer, and members of the board of directors, with the residence and postoffice address of each.
"4. The amount of authorized capital stock. *Page 229
"5. The amount of capital stock subscribed.
"6. The amount of capital stock issued and outstanding.
"7. The amount of capital stock paid up.
"8. The par value of the stock.
"9. The clear market value of the stock.
"10. The amount of surplus and undivided profits.
"11. The nature and kind of business in which the corporation is engaged and the location of its place or places of business.
"12. The clear market value of its property and assets without this State.
"13. The clear market value of its property and assets without this State.
"14. The clear market value of its total capital stock, surplus, property and assets.
"15. The change or changes, if any, in the above particulars made since the last annual report."
Paragraphs 12, 13 and 14 clearly provide for a corporation of the class here involved to report the very property found in the report of this corporation, and from which the Tax Commission has found and fixed the tax complained of in this action.
Section 3 of the act covers the duties of the Tax Commission, and serves no special purpose in this outline. Sections 4 and 5 deal with corporations (domestic and foreign) which do business in this State, but which have no capital stock. The latter provides the form of report for the same. Section 6 provides for certain fees to be collected annually from the corporations covered by Sections 4 and 5, and also for certain annual fixed fees for certain other corporations, therein mentioned. Neither of these sections (4, 5 and 6) has any application to the complaining corporation here, but we give this outline for the purpose of trying to get a meaning out of Section 10 of the act.
Section 7 makes the franchise taxes and penalties a lien upon the property, and serves no real purpose for this discussion. Section 8 provides for a suit to *Page 230 collect the taxes, and Section 9 provides for a forfeiture of charter and license rights for failure to report under the act. The only other material section is Section 10, which reads:
"All insurance companies, building and loan associations, and other corporations, the fees of which are fixed at lump sums by this act, and all corporations which employ all their property and all their outstanding capital stock in this State shall all report and pay the fees on all its outstanding capital stock, whether employed in this State or not, shall not be required to set out in the report required by this act the value of its property within this State or without the State."
If there ever was a conglomerated mass in a section of a statute, it is to be found is this Section 10. If you strike out from this section the clause, "and all corporations which employ all their property and all their outstanding capital stock in this State shall all report and pay the fees on all its outstanding capital stock, whether employed in this State or not," then the remainder would harmonize with all that has gone before in the previous sections. This because the previous sections have dealt with both franchise taxes, and fixed annual fees. With this clause cut out, the section would refer to and thoroughly fit in Section 6, supra, which is the fixed fee section, and not the general franchise tax sections. With the foregoing clause in Section 10, there is apparently a conflict between Section 10 and Sections 1 and 2, supra. This, upon the theory that you can make any sense out of the clause at all. This clause in the first part thereof refers solely to corporations which employ all stock and property in this State. Yet it is followed up by the incomprehensible phrase "shall all report and pay the fees on all its outstanding capital stock, whetheremployed in this State or not." Just how a corporation of the class just named in the first clause (a corporation using all its stock and property in this State) could have some of its capital stock in use in some other state is not made plain. But be this *Page 231 as it may, there is one thing which is plain. This clause only refers to "fees on all its outstanding capital stock" and there is no provision for fees upon stock (for corporations of the class here involved) in the whole act preceding Section 10. There is a specific provision for a franchise tax, but a franchise tax is not a fee. This, because Section 6, supra, provides for fixed annual fees, thus distinguishing between franchise taxes and fixed fees. The clause is therefore meaningless in this act, and it should be so declared. I therefore concur in the opinion of our learned brother.