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27, but not apportioning the increase be rate franchises, as such, as a separate and tween the two; and thereupon the county distinct item of personal property. The auditor, without any other or more specific method there provided for is the very comauthority from the county board, added mon and most equitable and efficient one,$43,750 to item 18, and $81,250 to item 27. of reaching the franchises and other intanThe board of equalization made this in-gible property for purposes of taxation crease without any evidence being intro- through the capital stock. The "capital duced upon which to act, and without any stock" (using the term in the sense in examination of the property of the company which it is evidently used in this section) at that time or for that purpose, and with- is, as has been said, "a business photograph out examination or inquiry as to the of all the corporate possessions and possiamount of the company's indebtedness or bilities," and represents its business opporthe amount of its capital stock. tunities and capacities as well as its tangiUpon this state of facts, the trial court ble assets. They enter into, and go to make has certified up two questions: (1) Were up, the value of the stock. It is well setthe franchises of the company hereinbefore tled that these franchises, although neither described, to wit, to be a corporation, and visible nor tangible, are property which may to lay and maintain its pipes in the public be taxed the same as any other property. streets of the city for the purpose of dis- Hence a very common method of taxing cortributing and supplying water and gas, sub-porations and stock companies is to list and ject to taxation, as such, as a separate item of personal property, under the provisions of 1524 of the statutes, or can it be reached for taxation only through assessments on the stock pursuant to the provisions of § 1530? (2) Was the increase on items 18 and 27, made in the manner above described, valid under the laws of this state?

Without stopping to discuss at length the whole scheme of taxation provided in our tax laws, an analysis and comparison of its various provisions satisfy us that the legislature intended § 1530, Gen. Stat. 1894, to be the exclusive method of listing and taxing the property of all corporations and companies falling within the purview of that section. That section nowhere provides for the listing and taxation of corpodealers and auctioneers; to assess an annual business tax on the average quarterly business of forwarding and commission merchants, brokers, banks, and banking institutions; and a like tax on the average quarterly receipts of insurance, express, and telegraph companies, does not warrant the imposition of a municipal tax on the gross receipts of city gas companies. This is so notwithstanding a later statute authorizing the city council, when raising revenue for current expenses and interest payments, to adjust the rate of taxation upon the different subjects then or afterwards made liable to taxation in such a manner as it may deem equitable, regardless of limitations and restrictions in former statutes, since this has not the effect to enlarge the number subject to the gross receipts or business taxes. Pittsburgh's Appeal, 1 Monaghan, 290, 16 Atl. 92.

g. Tares on insurance premiums.

1. In general.

It is settled that insurance is not commerce; so the embarrassments that beset one in the effort to determine whether a tax upon the receipts of corporations engaged in commerce interferes with the exclusive power to regulate foreign, interstate, and Indian trade conferred upon Congress by the Federal Constitution do not arise in the investigation of taxes upon premiums of insurance.

The leading cases of Paul v. Virginia, 8 Wall. 168, 19 L. ed. 357; Ducat v. Chicago, 10 Wall. 410. 19 L. ed. 972; and Liverpool & L. Life & P. Ins. Co. v. Massachusetts, 10 Wall. 566, sub

assess all their tangible property, real and personal, the same as the like property of other persons is listed and assessed, and also list and assess the capital stock at its actual or market value, less the value of its tangible real and personal property otherwise specifically listed and assessed. This system reaches every element of property value owned by the corporation, and at the same time avoids double taxation. This is clearly the scheme of taxation contemplated and provided for by § 1530, with one exception, which will be considered hereafter. It is evident, in view of the entire scheme, that the value of the personal property in the seventh item, which is to be specifically listed and assessed, and deducted from the market or actual value of the shares of stock, refers solely to tangible personal nom. Liverpool & L. Life & F. Ins. Co. v. Oliver, 19 L. ed. 1029,-are conclusive upon this point.

Premiums received by an insurance company, not being property, but income, are not taxable by a municipality empowered only to tax property, and to license, regulate, and tax cerlain designated businesses, not including insurDubuque v. Northwestern L. Ins. Co. 29 Iowa. 9; Burlington v. Putnam Ins. Co. 31 Iowa, 102.

ance.

Uncollected insurance premiums are not exempt in Louisiana. State ex rel. Mechanics' & T. Ins. Co. v. Board of Assessors, 47 La. Ann. 1498, 18 So. 1462.

When statutes lay a tax of a stated percentage upon all insurance premiums received in cash or otherwise, and all agreed to be paid, an insurance company liable thereto is bound to pay upon the aggregate premiums charged to its policy holders, although a part thereof is paid by crediting an excess of previous collections over the actual cost of insurance for the year of collection. People ex rel. Connecticut Mut. L. Ins. Co. v. State Treasurer, 31 Mich. 6.

It is held otherwise in Pennsylvania. It has been decided in that state that discounts from the face amounts of stipulated premiums when only the balance is actually paid by the policy holder to the company are no part of the receipts of the corporation within the meaning of the tax law of that state. And this is so even where the company calls the discounts dividends and credits the policy holder with the full premium, and charges him with

property, and does not include franchises. stitutional objection to the system of taxaIt would be wholly unreasonable to assume tion provided for in § 1530, and no question that the legislature would adopt the scheme but that the franchises of these corporations of reaching the franchises and other intan- were not intended to be made subject to gible property of a corporation through the taxation as a separate item of personal taxation of its capital stock, and at the property, under § 1524, but only taxable same time turn around and specifically tax through the assessment of the capital stock, as a separate item of personal property, and pursuant to the provisions of § 1530. But deduct from the value of the stock, the very in the latter section the legislature has intangible property which they were en- gone a step further, and provided for the deavoring to reach through the taxation of deduction from the value of the capital the stock. Sections 1524 and 1530 must be stock, not merely of the value of the tangiread and construed together; and, doing so, ble corporate property otherwise specifithe 14th subdivision of the former section, cally taxed, but also the total amount of all providing for listing and assessing fran- indebtedness of the association, except inchises as a specific and separate item of debtedness for current expenses. Such a personal property, was intended to apply provision is in direct conflict with the cononly to franchises owned by private persons stitutional requirement that all taxes shall or others not falling within the provisions be as nearly equal as may be, and that all of § 1530. Thus far there can be no con- property on which taxes are to be levied shall assessment and taxation except as therein provided, because this broad language is necessarily qualified by the remainder of the law in which it occurs, and so is confined to fire and marine insurance companies alone. Ibid.

the abatement upon its books. Com. v. Penn Mut. L. Ins. Co. 1 Dauph. Co. Rep. 233.

A section in a state revenue act taxing all insurance companies doing business in the state (except mutual ones without capital stock) upon the gross amount of premiums received in the state during the previous year. and freeing them from other taxes beyond those on real estate and fees to the insurance department, is fairly within the purview of a general act embracing, amid other subjects of taxation, all personal property and other investments, as well as property in from the state controlled by residents, since it reaches premiums in the hands of local agents. Phoenix Ins. Co. v. Omaha, 23 Neb. 312, 36 N. W. 522.

transitu

In New Jersey an insurance company is not liable to taxation on premiums received by its local superintendent and placed to his credit in a bank where every week he sends his total collections to the company, as this money is merely in transitu between policy holders and the insuring corporation. State, Metropolitan L. Ins. Co., Prosecutor, v. Newark, 62 N. J. L. 74, 40 Atl. 573.

sage.

People v. National F. Ins. Co. 27 Hun, 188, Reversing 61 How. Pr. 334, 342.

Unearned premiums in the possession of the insurer are liable to taxation notwithstanding the right of the insured to a cancellation of his policy and the return of the part of the premium at any time on demand. People ex rel. Westchester F. Ins. Co. v. Davenport, 91 N. Y.

Receipts of a life insurance company not spent in operation nor added to the legal reserve, but put into a surplus fund, are taxable within a statute taxing corporations upon their net earnings, even where the company is conducted upon a purely mutual plan so that theoretically it has no net income. Com. v. Penn. Mut. L. Ins. Co. 1 Dauph. Co. Rep. 233.

And an exemption in the tax act of corporations liable to a tax on capital stock or gross receipts includes those liable to taxation upon gross premiums. Ibid.

When an insurance company is dissolved during the half year for which it is taxed in Pennsylvania upon gross premiums, it is liable only for the proportion of the tax accruing prior to dissolution. Com. v. American L. Ins. Co. 14 Pa. Co. Ct. 216.

2. Domestic companies.

A statute taxing insurance companies a speciA statute providing in substance that a state fied percentage upon premiums received dur tax, as a franchise tax, of 2 per cent is to be ing six months before the first days of July levied annually upon the gross receipts or earnand January in each year, and requiring semi-ings of sundry corporations of designated charannual reports to be made after its enactment acters incorporated under general or special as the basis of assessing the tax, authorizes the laws of the state and doing business therein, first assessment to be made before the statute and that all the provisions and requirements has been operative for six months and on acthereof shall be in force and apply to all forcount of premiums received prior to its pas- eign corporations of a like kind doing business in the state, imposes such tax only upon such receipts or earnings of domestic corporations within the statute as they derive from business done within the state and not upon their gross income gained everywhere. Since the legislature plainly could reach only such receipts of foreign corporations as were gained within the state, it is not supposable that it intended to tax home companies higher than foreign ones, and as the practice of the state officers in administering the law has uniformly been not to discriminate, the courts should so construe the act. State v. United States Fidelity & Guaranty Co. 93 Md. 314, 48 Atl. 918. A domestic insurance company chartered originally as a purely mutual one, but since authorized by law, at discretion, to insure for cash premiums, which neither entitled the assured to membership nor subjected him to assessment, and accepting and acting under the new powers, makes itself liable to a tax upon gross premiums upon all domestic insurance companies from which those doing business upon a purely mutual plan without any capi

574.

A corporation formed to guarantee the fidelity of persons in public or private place of trust is an insurance company, and as such liable to pay a state percentage tax upon the gross premiums of all insurance companies except life and purely mutual beneficial associations. People er rel. American Surety Co. v. Wemple, 58 Hun, 248, 12 N. Y. Supp. 271, Affirmed in 126 N. Y. 623, 27 N. E. 410.

Such a corporation is not exempted from such tax by a clause in a statute taxing only fire and marine insurance companies declaring that the personal property, franchise, and business of all insurance companies, foreign and domestic, shall thereafter be exempted from all

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have a cash valuation, and be equalized and uniform throughout the state. The indebt edness presumably affects the value of the stock as directly as do the assets of the corporation. The former depreciates, while the latter appreciates, its value. The practical effect of this provision is to allow a double deduction of the amount of the corporate indebtedness. It would necessarily result in inequality of taxation, not only as between the associations themselves falling within the provisions of § 1530 (owing to differences in their financial condition), but also as between all such associations and persons or associations taxed un- tions or associations could be reached for der the general provisions of the tax law, who are not permitted to deduct their indebtedness from the value of franchises owned by them. See Henderson Bridge Co. v. Com. 99 Ky. 623, 29 L. R. A. 73, 31 S. W. 486.

tal stock or accumulated reserve are exempt. Lycoming F. Ins. Co. v. Com. 10 W. N. C. 228.

3. Foreign companies.

A state may lawfully impose taxes upon foreign insurance companies doing business within it of a percentage of the premium receipts. Ducat. Chicago, 10 Wall. 410, 19 L. ed. 972; Oliver v. Liverpool & L. Life & F. Ins. Co. 100 Mass. 531, on Error, 10 Wall. 566, 19 L. ed. 1029.

A municipal ordinance imposing an annual license tax of 2 per cent on the premiums paid or promised to foreign insurance companies for business transacted in the city, such city being empowered by its charter and an amendatory act to license, regulate, and tax insurance brokers and agents, and to regulate agencies of all insurance companies within its jurisdiction, and being possessed of an organized fire department, is, and the penalties ordained for its infraction are enforceable, notwithstanding a general statute providing for an annual report of premium receipts and payment of a property tax thereon at the same rate as other taxes in lieu of all town and municipal licenses, when the general law contains a saving proviso leaving such cities free to levy license taxes to such a percentage for the support of their fire departments. Walker v. Springfield, 94 Ill. 364.

Unearned premiums returned to policy holders are not to be counted in computing the state percentage tax on gross premiums received by a foreign insurance company for business done in the taxing state. German Alliance Ins. Co. v. VanCleave, 191 Ill. 410, 61

N. E. 94.

This presents the important question whether the invalidity of this provision renders the whole of § 1530 invalid, or whether its remaining provisions are valid notwithstanding the invalidity of this one provision. Without entering into any extended discussion of the rules governing the question when a statute may be held void in part and valid in part, we may refer to a few facts and practical considerations peculiarly applicable to the present case. In the first place, if the whole of § 1530 is held invalid, the only method by which any part of the intangible property of these corporataxation would be under the provisions of the 14th subdivision of § 1524,-a system much less complete and equitable than that provided by § 1530, with the invalid provision omitted, and one which it is evident the legislature never actually intended to on account of their gross receipts. British Foreign Marine Ins. Co. v. Board of Assessors, 42 Fed. 90.

When a statute taxing premiums collected within the state by a foreign insurance company exempts therefrom, and from retaliatory clauses as well, all premiums loaned within the state for two years or more, investments thereof in municipal water bonds for that length of time are not taxable; these are true loans, not purchases. State v. North America Ins. Co. 55 Md. 492.

Assessments collected from its members by a foreign insurance company doing business on that plan are not premiums within a taxing statute, and a license cannot be refused a foreign organization of that character until it Masonic Aid Asso. v. Waddill, 138 Mo. 628, 40 pays a percentage tax thereon. Northwestern S. W. 648.

A statute granting power to a municipality to levy taxes for general purposes on all real able by the laws of the state, the valuation to and personal property within its limits taxbe taken from the county assessment roll, is sufficient authority for a city tax upon the gross premiums collected in the city for a foreign insurance company when these are by a state law taxable in the hands of the resident agent. Phoenix Ins. Co. v. Omaha, 23 Neb. 312, 36 N. W. 522.

The payment of a tax by an insurance company in accordance with the provisions of a new system of corporate taxation upon franchises and business for state purposes, set forth in a

statute which provides that upon such payment the taxpaying corporation shall be exempt from assessment or taxation except as therein prescribed, does not relieve its resident agent from the payment of a specified percentage of its gross premiums from risks taken within a certain city exacted annually for a local incorporated firemen's association, since, although the exaction is in the nature of a li cense fee for state purposes, it is nevertheless local, and, while within the language of the Exempt exemption, is not within its meaning. Firemen's Benev. Fund v. Roome, 93 N. Y. 313, 45 Am. Rep. 217.

A statute relating to foreign insurance companies, providing that the capital shall be deemed the aggregate value of the deposits made in the several states to secure policy holders together with bonds and mortgages on real estate in the United States, and that when said capital has not been taxed, and the taxes thereon paid by the main agency or the company in another state, then the taxation shall be upon the gross receipts less deductions governing domestic companies; but which neither provides nor indicates any method of ascerA foreign insurance company having an agentaining such gross receipts, and neither fixes cy and being in receipt of premiums and linor authorizes the fixing of any rate of taxcensed to do business in the state is liable to ation; and when the general state revenue act, a state percentage tax upon such receipts unwhile comprehensively enumerating subjects of der the licensing statute imposing them, in detaxation, is wholly silent as to gross receipts, spite of a later statute for taxing such corpois too indefinite to warrant the imposition rations which does not repeal the former one of any tax upon foreign insurance companies' but does impose a tax upon all foreign and do

apply to the corporations and associations may not operate without the other, or that falling within the purview of § 1530. Again, it is impossible to suppose that the legisla while it cannot be denied that the legislature would have passed the one without the ture intended the provision for deducting other. There is no such essential and inthe indebtedness from the value of the capi-separable connection or interdependency in tal stock to be a part of the system of list- this case. The other provisions will opering and assessing the property of these cor- ate, and can be executed, with this invalid porations and associations, yet this provi- provision stricken out. Neither is there sion is easily separable from the other pro-anything to justify a court in holding that visions of the section. What would remain the legislature would not have enacted the would constitute a complete system of taxa- statute with this obnoxious provision omittion, fully capable of being executed in ac- ted. The evident intention was to reach for cordance with what we think was the ap- taxation the franchises and other intangiparent legislative intent. The fact that ble property of these corporations and assothis void provision is in the same section ciations as effectually and completely as with other provisions is not important, for possible. This the legislature thought the distribution into sections is purely arbi- could be best accomplished by listing and trary. The test is, rather, whether the pro- assessing the value of the stock, which, as visions are so essentially and inseparably already suggested, represents every element connected and interdependent that the one of property value, tangible and intangible, mestic corporations upon their capital stock, tract relations, real or supposed, have been reand expressly exempts therefrom foreign in- served for separate treatment; while cases surance companies licensed pursuant to general wherein it appeared that the deposits subjected acts in relation thereto. Com. v. Germania F. to taxation stood invested in United States Ins. Co. 11 Phila. 553. bonds are referred to elsewhere herein.

Under legislation requiring foreign fire and inland navigation insurance companies to pay 2 per cent of the gross income of the preceding year on business done in the state; and all foreign life or accident companies to pay $300 annually for transacting "such" business; and all domestic life or accident companies to pay, in addition to such $300, 2 per cent upon their cash receipts for premiums on home state business done during the preceding year, as afterwards amended so as to make foreign acctdent insurance companies subject to the same fees and taxes paid by fire insurance companies doing business in the state, there is added to the $300 license fee required of a foreign company doing an accident business in the state the additional requirement of 2 per cent of its gross income during the preceding year from state business; and therefore a combined life and accident foreign insurance company which has done business in the state for several years under a life insurance license, and only paid the $300 annual fee, is liable for the 2 per cent on gross income from state accident business, and may be deprived of its license if it does not pay such percentage for the past years. Travelers' Ins. Co. v. Fricke, 94 Wis. 258, 68 N. W. 958, 99 Wis. 367, 41 L. R. A. 557, 74 N. W. 372.

Under the Ohio statute (Rev. Stat. § 2745) providing, inter alia, that certain dividends, cancellations, values, and commissions shall be deducted from the gross receipts, and the net balance shall be the basis of taxation for foreign insurance companies doing business in the state at the rate of 21⁄2 per cent; but also providing that it shall be the insurance superintendent's duty to charge and collect from such companies such a sum as, added to the amount paid to the county treasurers, will produce the equal of 2% per cent on such receipts of such companies as shown by their annual statements to the insurance department (which statements are required to show the gross receipts),-the basis of computation is the gross, and not the net, receipts. State ex rel. Penn Mut. L. Ins. Co. v. Hahn, 50 Ohio St. 714, 35 N. E. 1052.

h. Taxes on bank deposits.

As before mentioned with respect of other franchise taxes, cases involving taxes on bank deposits in which was raised the question of the validity of the imposition because of con

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When the United States revenue act of June 30, 1864, was amended (March 3, 1865) by omitting from § 110, reading: "There shall be levied, collected, and paid a duty of 1-24 of 1 per cent each month upon the average amount of deposits of money subject to payment by check or draft, or represented by certificates of deposit or otherwise, whether payable on demand or at some future day with any person, bank, association, company, or corporation engaged in the business of banking, provided, that this section shall not apply to

[any savings bank having no capital stock and whose business is confined to receiving deposits and loaning the same on Interest for the benefit of the depositors only, and which do no other business of banking],"-the proviso brought such savings banks within the substantive provisions of the act. Bank for Savings v. The Collector, 3 Wall. 495, sub nom. Bank for Savings v. Field, 18 L. ed. 207.

Under the California system for taxation of bank deposits, not only are ordinary deposits subject to the tax, but also interest drawing debts of the bank for borrowed money. Security Sav. Bank & T. Co. v. Hinton, 97 Cal. 214, 32 Pac. 3; Main Street Sav. Bank & T. Co. v. Hinton (Cal.) 32 Pac. 6.

In Kentucky the banks are not required to pay tax on the money deposited with them by their customers, or on amounts which represent it. Deposit Bank v. Daviess County, 102 Ky. 174, 44 L. R. A. 825, 39 S. W. 1030, 44 S. W. 1131, Affirmed in 173 U. S. 636, 663, 43 L. ed. 840, 850, 19 Sup. Ct. Rep. 530, 875.

Under an act (Md. Laws 1874, chap. 483, § 85), requiring savings banks that receive deposits and allow interest thereon to furnish the comptroller yearly the aggregate amounts of deposits in them and pay a state tax out of the interest due the depositors, such deposits as are invested in ground rents under ninetynine year leases perpetually renewable on land which is assessed to the leasehold owner and taxed, are not within the scope of the act, since the tax thereby imposed is a property tax, and to construe the statute otherwise would result in a double taxation. State v. Central Sav. Bank, 67 Md. 290, 10 Atl. 290, 11 Atl. 357. Following State v. Sterling, 20 Md. 502, upon the the ground of stare decisis.

And for the same reason upon the amending of the statute (Code, § 86 of art. 81), re

owned by corporations or associations; but, in enumerating the deductions to be made, they erroneously included their indebtedness, presumably because they failed to perceive that this had already entered into, and gone to fix, the value of the stock, or that such a deduction would necessarily result in inequality of taxation. But, with this deduction omitted, what remains will effect the full and fair taxation of all the intangible property of these corporations and associations, the very purpose which the legislature apparently had in mind. For these reasons our conclusion is that the remainder of the section should be held valid, notwithstanding the invalidity of the objectionable provision. The result is that the franchises of the defendants could be taxed only through the taxation of their stock in the manner provided in § 1530.

quiring every savings bank to pay annually what is there designated as a franchise tax to the amount of 4 of 1 per cent on the total amount of deposits held by such savings bank, but declaring unequivocally that no other tax shall be laid on such bank in respect of such deposits, the securities in which such a bank has invested a part of the deposits are not taxable. Westminster v. Westminster Sav. Bank, 92 Md. 62, 48 Atl. 34.

The Massachusetts statute taxing certain insurance companies and depositors in savings banks was construed as providing that every domestic savings corporation should pay a state tax on account of its depositors of a fraction of 1 per cent on the amount of its deposits, to be assessed, one half on the average amount of deposits in the preceding half year, in May and November, and as exempting all property taxed as above for the current year in which such tax was paid. Provident Inst. for Savings v. Massachusetts, 6 Wall. 611, 18 L. ed.

907.

The basis of computing such tax was held to be the amount deposited, together with interest and dividends accruing and payable to depositors, but not to include undivided profits or a guaranty fund. Re Suffolk Sav. Bank, 151 Mass. 103, 23 N. E. 728.

And when a statute taxes all personal estate in or out of the state to be assessed to the owner at the place he inhabits deposits by a foreign corporation in a Massachusetts bank are not taxable, because such a depositor, being domiciled in its home state, does not become an inhabitant of Massachusetts by merely doing business therein. Boston Invest. Co. v. Boston, 158 Mass. 461, 33 N. E. 580.

It affords no claim to a reduction of a tax upon savings bank deposits and accumulations or dividends due depositors in New Hampshire that part of its assets earned no income during the tax year, and will be equally unprofitable during the next; nor that its surplus is relatively less than that of other savings banks, and consequently its exemptions not so large. Union Five Cents Sav. Bank's Petition, 68 N. H. 384, 36 Atl. 17.

When savings bank depositors are taxable at their respective places of residence upon their deposits the bank is not taxable upon corporate stocks in which it has invested such deposits for income. Providence Inst. for Sav. v. Gardiner, 4 R. I. 484, Following American Bank v. Mumford, 4 R. I. 478.

Under a statute providing that every bank and trust company shall pay a state tax of a fraction of 1 per cent upon the average amount of its deposits, including money or securities

2. The method adopted by the county board of equalization in increasing the valu ation of items 18 and 27, and by the county auditor in apportioning the increase between the two items, may have been irregular; but the defendants are not in position to successfully object, for the reason that it is neither alleged nor shown that they are at all prejudiced thereby. There is no claim that there has been an overvaluation of either item.

3. The case of the Duluth Street-Railway Company presents a question not involved in the other cases, viz., Is it taxable as a railroad company, under Gen. Laws 1887, chap. 11, § 1 (Gen. Stat. 1894, § 1669); that is, by taxing it a percentage on its gross earnings? Assuming, without deciding, the validity of this act, it applies only to what are usually known as ordinary comreceived as trustee under an order of court or otherwise, deducting therefrom, inter alia, the amount of individual deposits in excess of $1, 500 each, and that no other tax shall be assessed upon such deposits except on individual deposits exceeding $1,500, a trust fund of $23,000, created by will for the benefit of a minor under guardianship, and deposited by an order of the probate court with a trust company, which keeps it in a separate fund and accounts for its actual earnings, is not exempt, but is within the general laws relating to taxation and subject to a city assessment under chartered power to tax. Montpelier Sav. Bank & T. Co. v. Montpelier, 73 Vt. 364, 50 Atl. 1117. VII. Organizations subject to franchise taxes.

a. Generally.

Taxation is the rule, exemption the exception; therefore, all sorts and conditions of organizations that can be made to bear franchise taxes are subjected thereto.

A water company vested with the right of corporate existence and powers common to all corporations of succession, seal, suing and defending, buying and selling, and of doing business in a corporate capacity; having a right to condemn and take needed lands and waters, and to occupy with its mains the public streets, and distribute and sell water at rates fixed by a prescribed legal method, is possessed of franchises capable of private ownership, and hence taxable under a constitution requiring property not exempt by Federal laws to be taxed ad valorem, and defining property as inclusive of franchises capable of private ownership. Spring Valley Waterworks v. Schottler, 62 Cal. 69.

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A statute taxing all packing houses doing a cold-storage business in the state, whether by the principal or an agent, is not inclusive of a concern maintaining a refrigerator plant to preserve its own commodities pending sale, and which does not receive or store for any others whomsoever. Stewart v. Atlanta Beef Co. 93 Ga. 12, 18 S. E. 981.

Under a state constitution providing that naught contained in it shall be construed to prevent the legislature from providing for taxation based on income, licenses, or franchises, that body is not restricted to taxing only such privileges as fall within the well-defined legal meaning of the term "franchises," but it may, in a statute taxing banking franchises, provide for taxing, not only corporations exercising them, but private individuals as well when they carry on the banking business. Providence

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