
    The Southern Gum Company et al. v. Laylin, Secretary of State.
    
      An excise tax may be imposed by the state, when — A franchise tax may be imposed upon domestic and foreign corporations —State is sovereign except as limited by XJ. S. Constitution —Limitation of such taxes not to exceed reasonable value— Determination of value vested in general assembly and finally in court — Tax of one-tenth of one per cent, on capital stock — Under act of April 11, 190%, is valid — Constitutional law.
    
    1. The state is a sovereignty, with sovereign powers, except as limited by the constitution of the United States.
    2. While there is no express limitation upon the power of the general assembly to tax privileges and franchises,, such power is impliedly limited by those provisions of the constitution which provide that private property shall ever be held inviolate, but subservient to the public welfare, that government is instituted for the equal protection and benefit of the people, and that the constitution is established to promote our common welfare.
    '3. By reason of these limitations a tax on privileges and franchises can not exceed the reasonable value of the privilege or franchise originally conferred, or its continued annual value hereafter. The determination of such values rests largely in the general assembly, but finally in the courts.
    4. An excise tax may also be imposed upon corporations to compensate the state for the additional burden caused by the aggregation of capital in an artificial body, and the exemption, in part at least, of the individuals composing such body from liability for its debts.
    5. A franchise tax may be imposed by the general assembly upon corporations, both domestic and foreign, doing business in this state.
    6. The tax of one-tenth of one per cent, on the subscribed or issued and outstanding capital stock of corporations as provided for in the act of April 11, 1902, entitled “An act to require corporations to file annual reports with the secretary of state, and to pay annual fees therefor,” is a franchise tax, and not a tax on property. Said act is a valid constitutional law.
    (Decided June 24, 1902.)
    
      Error to the Court of Common Pleas of Franklin county.
    The plaintiff in error, also plaintiff below, began an action in the court of common pleas in its own behalf, and in behalf of forty-four other corporations similarly situated, to recover from Lewis C. Laylin, secretary of state, money paid to him under duress and under protest accompanied with notice that an action would be brought for the recovery of the same, averring that payment was made to escape a heavy penalty imposed by the act known as the Willis law, passed April 11,1902, entitled “An act to require corporations to file annual reports with the secretary of state and to pay annual fees therefor.”
    The petition avers that when the plaintiff was incorporated in 1901, it paid to the secretary of state as required by section 148a, Revised Statutes, twenty-five dollars, its charter fee, and two dollars, its certificate of subscription fee, and has listed all its property for taxation and paid said taxes, and it is now assessed for further taxation on all its property, and that it will pay such taxes when the same shall become due.
    The said Willis law requires corporations to file an annual report in May of each year with the secretary of state, and to pay to him a fee of one-tenth of one per cent, upon the subscribed or issued and outstanding capital stock of said corporation, and to be not less than ten dollars in any case.
    The petition contains the following averments:
    “Plaintiff is advised and believes, and therefore charges and avers that said defendant claims that such charge and exaction of one-tenth of one per cent, of the capital stock of said corporation and the additional charge and exaction of one-tenth of one per cent, upon the subscribed or issued and outstanding capital stock of all of said corporations in behalf of which this action is brought, was and is a legal fee fixed, by law and required to be made to the secretary of state under said act of the general assembly as above set out.
    “Whereas, the plaintiff claims and will to the court insist, that this enactment is a statute merely attempting to levy a tax and raise a revenue for the general purposes of the state, and that the same was and is applied to plaintiff corporation and all other corporations organized under the laws of Ohio for profit wholly inoperative and void and is contrary to the constitution of the United States and the constitution of the state of Ohio.”
    The plaintiff prays that the secretary of state may be enjoined from paying said money into the state treasury, as the act requires him to do, and for a judgment in behalf of itself, and the other corporations for the recovery of said money so paid.
    The secretary of state demurred to the petition, claiming that it does not state facts sufficient to warrant the relief prayed for.
    The court of common pleas sustained the demurrer and dismissed the petition. On motion of plaintiff leave was granted to file a petition in error in this court, which was accordingly done.
    
      Messrs. McCarthy & McDoivell and Mr. Charles C. Upham, for plaintiffs in error.
    From the above definitions as to what a tax is, we gather two necessary and predominant elements.
    First — That it is levied upon all the property of a given class, and
    
      Second — That it goes to the general revenue, fund of the state.
    This exaction is imposed upon the property of domestic corporations. It is levied upon the subscribed or paid up and outstanding capital stock of corporations.
    What is paid up capital stock of a corporation but its assets? The general statute on this subject provides that the terms “Personal Property” shall be held to mean and include, second, “The capital stock, individual profits and all other means in forming part of the capital stock of every company,” etc. Revised Statutes, Sec. 2730.
    Section 2744, provides, that corporations shall list for taxation “All the personal property, which shall be held to include all such real estate as is necessary to the daily operations of the company, moneys and credits of such company or corporation within the state at the actual value in money,” etc.
    Section 2746, provides, that stocks shall be listed by the person owning the same, but no person shall be required to list for taxation any share or shares of stock of any company when the same is taxed in the name of such company.
    From the foregoing sections of the statute it is clear that the capital stock of a corporation is personal property, that it is subject to taxation, that it may be taxed either by levying the tax against the corporation itself or against the person owning the shares of stock, but that if it is paid by the corporation, it cannot then be levied against the person so owning the stock. These sections therefore clearly provide for the levying of a tax on the capital stock or property representing the same.
    
      It lias been held by this court that the personal property which a corporation, organized and doing business under the laws of this state, is required to list for taxation embraced the capital stock of the corporation, and such being the case, an owner of the shares of the capital stock of said company was not required to list his shares for taxation. Jones v. Davis, 35 Ohio St., 474.
    Thus it will be seen that this law has both of the principal elements of a tax. We may conceive that taxes may be levied both on property and on occupation, but they must be so laid that they do not both fall directly upon the same property. This is laid down distinctly in Cooley on Taxation. In illustrating this doctrine he says: “To tax a merchant upon his stock as property, and also upon his gross sales, may be burdensome, but it is not unconstitutional when it is not expressly forbidden by the constitution. The two taxes are not identical, and though they may operate unjustly in particular cases, they are supposed to be imposed because the general result is equal and just.” Cooley on Taxation, p. 385.
    But how can it be said that the two taxes, the general tax against all corporate property levied under the general tax laws of this state, and the tax imposed by this act are not identical? If the capital stock of a corporation, and the property in which it is invested are identical, then one tax is laid upon the property and the other laid upon the capital stock, which is the same thing, constitutes double taxation. Constitution, Art. 12, Sec. 2; Railway Co. v. State, 49 Ohio St., 189.
    The case of the Railway v. State, supra, we think, is absolutely decisive of the case at bar. Ashley v. Ryan, 
      49 Ohio St., 525; Vandenbark v. Mattingly, 62 Ohio St., 28; Constitution of Ohio, Sec. 4, Art. 13.
    Suppose we concede, for the purpose of the argument that this law does not impose a tax upon property, but that it is a tax on the franchise, a charge for the privilege of doing business, then it is void under the holding in the Bank v. Hines, 3 Ohio St., 1.
    Taxing by uniform rule requires uniformity in the mode of assessment upon taxable valuation. Uniformity in taxing implies equality in the burden of taxation; and this equality of burden cannot exist without uniformity in the mode of assessment as well as in the rate of taxation. Bank v. Hines, 3 Ohio St., 15; Cleveland Tr. Co. v. Lander, 62 Ohio St., 272.
    In the case of McCurdy, Guardian, v. Prugh, Treasurer, 59 Ohio St., 465, it is held that Sec. 2, Art. 12, of the constitution, provides for two things: First, the rule for fixing the rate of taxation; and second, the rule for valuing property.
    It has been said that this court has already decided the question here raised, holding in substance that domestic corporations can be so taxed. We do not so understand the decisions of this court. In the case of Express Co. v. State, 55 Ohio St., 80, the court says that the question of so taxing a domestic corporation, is not before it.
    This latter case also distinctly affirms the case of Telegraph Co. v. Mayer, 28 Ohio St., 521, which was a case arising upon the question of the right to tax foreign corporations.
    
    In certain cases it has been held by this court that the state may impose a burden upon certain corporations and employments with a view to the protection of the health of the citizens or for the preservation of good order, or to secure the safety, convenience or general welfare of the community, but that has only been done so far as domestic corporations were concerned, when the state, county or municipal corporation was put to some expense by reason of the management and control of said business or occupation. Adler v. Whitbeck, 44 Ohio St., 545.
    Now in the act in controversy, what is there tending to show that the carrying on or the management of the various corporations in the state, are a burden to the general public?
    And in all other cases where a tax, assessment or fee of this kind has been sustained, it has been upon the hypothesis of protecting the people or the public from increased burdens growing out of the carrying-on of the various businesses, and in this connection we refer to the case of The Gas Light & Coke Co. v. State, 18 Ohio St., 238; Telegraph Co. v. Mayer, 28 Ohio St., 534; Holst v. Roe, 39 Ohio St., 340, and in the liquor cases, Frame v. State, 53 Ohio St., 311, and Butzman v. Whitbeck, 42 Ohio St., 223; and also this case of Adler v. Whitbeck, 44 Ohio St., 545.
    In Railway Co. v. State, 49 Ohio St., 189, the Supreme Court in passing on the act of April 15, 1889,. requiring every corporation or company operating a. railroad or any part of a railroad within this state, to-pay to the commissioner of railroads and telegraphs a fee of one dollar per mile, etc., the court says: “What is this statute? Its constitutionality must be-determined by its operation. It provides in terms, that there be placed upon each mile of railroad track within this state an exaction of one dollar per annum. The statute calls it a fee, but its nature is not affected by the name that may be assigned to it. * * * That it is such a tax, we think there can be little, if any, doubt. A tax is a pecuniary burden for the support of the government; burdens or charges imposed by the legislative power of state upon persons or-property to raise money for public purposes.” 2nd Bouvier, 705.
    Now while it is true that act as passed on by the court at that time, was declared unconstitutional, because it was a tax on property to-wit: — a dollar for each mile of track, the doctrines laid down therein are entirely applicable to the case at bar.
    Section 6 of this act is unconstitutional.
    J This section seeks, if it has any effect, to constitute-a tribunal outside of the regular judiciary of the state,, to try any questions that may arise in the application of this law. We think the legislature has no power to transfer from the regular judicial tribunals, the right, to so try and determine these questions, and if it had, the law is eminently unfair,'because it appoints as one-of the judges of the tribunal, the attorney general whose duty it is to represent the state in such cases. Zanesville v. Zanesville Telegraph & Tel. Co., 64 Ohio St., 67.
    The holdings in other states are not by any means uniform. The most notable case probably in the books in recent years in favor of this law, is found in 118 Ala., 143. This case holds in substance, that the property of corporations may be taxed under the general laws of that state at the same rate as other-property, and that an additional fee, assessment or tax may be laid on the capital stock -of corporations. It is impossible to see how that could be done in Ohio,, having in view the holding of this court, in Jones v. Davis, 35 Ohio St., 474. We do not see how the-Alabama case can be reconciled with the holdings, in this state.
    
      Among the cases holding the opposite rule, and the one for which we contend, and with which the Ohio doctrine is reconcilable, we cite the following text and authorities supporting it: Lewiston Water Power Co. v. Asotin Co., 64 Pac. Rep., 544; 24 Wash., 371; People v. Badlam, 57 Cal., 594; Ridpath v. Spokane Co., 63 Pac. Rep., 261.
    ■ Mr. J. M. Sheets, attorney general, Mr. A. Squire and Mr. John W. Warrington, for defendant in error.
    We maintain that the fee authorized by the act and complained of herein, is a charge upon the corporate franchise to do business or to operate according either to statutory powers conferred or to consent given through comity.
    The title of the act shows a purpose to require corporations to “file annual reports with the secretary of state and to pay annual fees therefor,” in addition to taxes on their ordinary property. The last paragraph of the first section requires the secretary of state to charge and collect in respect of domestic corporations for profit, “a fee of one-tenth of one per cent, upon the subscribed or issued and outstanding capital stock.” The last paragraph of section 2 requires the same official in respect of foreign corporations for profit doing business in Ohio, to “charge and collect * * * f0r the privilege of exercising its franchise in Ohio, annually, one-tenth of one per cent, upon the proportion of the authorized capital stock of the corporation represented by property owned and used and business transacted in Ohio.”
    Consideration of this language cannot but satisfy every one that if we regard the fees thus authorized as a species of taxation even for revenue, the intent of the legislature was not to select a new object of taxation except so far as it relates to a new class of corporations. The same object of taxation has been employed during many years for raising revenue, to-wit: corporate franchises and privileges. A change in class of corporations, or the inclusion of a greater number of corporations, cannot change the principle involved or the nature of the power exercised. The result is that the object of this class of taxation is not property; it is a franchise or privilege. It is not even capital stock in the sense of shares of stock. The corporation is not the owner of the shares; its stockholders are. Leo, Treas., v. Sturges, 46 Ohio St., 153.
    It is settled that Sec. 2, Art. 12 of the constitution does not vest power to tax, but only prescribes a mode for the exercise of the power to tax property, and only that character of property which the section specifies. It is settled that the power of taxation abides in the legislative grant; and that there is no mode prescribed by the constitution for the taxation of objects other than property. Ashley v. Ryan, 49 Ohio St., 504; Marmet v. State, 45 Ohio St., 63; State v. Ferris, 53 Ohio St., 314.
    But the decisions of this court extend further. They seem to us to cover and uphold the very kind of statutory charge or tax now in dispute. Telegraph Co. v. Mayer, 28 Ohio St., 521; Hagerty v. State, 55 Ohio St., 613, upheld the collateral inheritance tax act, which imposed a tax upon the right or privilege of receiving property by inheritance.
    In Express Co. v. State, 55 Ohio St., 69, the doctrine was recognized, though it was not conceded to be directly involved, that the legislature might, in the exercise of the taxing power for general revenue, select a single business and impose upon the persons engaged in it, an excise tax in .addition to a tax upon tlieir property, for the privilege of carrying on that business.
    
      Express Company v. State, was recently approved and followed in Car Line v. Guilbert, 64 Ohio St., 614; Insurance Co. v. New York, 134 U. S., 594.
    We beg to call attention to the entire opinion of Mr. Justice Field in that case. Ashley v. Ryan, 153 U. S., 436.
    We may safely deduce from these, decisions, all growing out of Ohio legislation:
    First, that the. old theory of property as defined in Sec. 2, Art. 12 of the constitution being the sole basis, of taxation for general revenue, is obsolete and completely overthrown.
    Second, that franchises' and privileges received or enjoyed through either grant or comity of the state,, are subject to conditions imposed by general law and are legitimate objects of taxation for general revenue.' No distinction is made as to franchises or privileges, received or enjoyed by domestic and foreign corporations; indeed, in the absence, as in the present statute, of legislative discrimination, it would be as irrational,, to assert such a distinction, as it plainly would be, in the absence of legislative discrimination, to urge one between a citizen and a foreigner touching their liability respectively to a condition imposed as a tax upon the privilege to inherit or succeed to property.
    Let us now examine some decisions rendered outside of Ohio upon legislative and constitutional provisions kindred to our own. Cable Company v. Attorney General, 46 N. J. Eq., 270.
    It is evident that shortly after the passage of the annual tax or fee law in New Jersey, the same resistance was made to it as has been made here. The case-last cited was decided in 1889. The question came up in another form in 1892 before the New Jersey Supreme Court. Honduras Commercial Co. v. State Board of Assessors, 54 N. J. L., p. 278.
    The question was again before the Supreme Court of New Jersey in 1893, where another ingenious effort was made to escape the tax. Bridge Company v. State Board of Assessors, 55 N. J. L., p. 529; Marsden Co. v. State Board of Assessors, 61 N. J. L., 461; Commonwealth v. Hamilton Manufacturing Co., 12 Allen, 298; Commonwealth v. Cutter, 13 Allen, 393; Manufacturers Ins. Co. v. Loud, 99 Mass., 146; Commonwealth v. Bank, 123 Mass., 493; Railway Co. v. Board of Com’rs Brunswick Co., 72 N. C., 10; Clark & Marshall on Private Corporations, Vol. 1, Sec. 286 (b); Scottish U. and N. Ins. Co. v. Herriott, 109 Iowa, 606; People v. Home Insurance Co., 92 N. Y., 328.
    The analogy of this class of decisions is apparent when we consider that the claim there made was that a tax nominally upon the capital stock was a tax upon government bonds held by the corporation, while the claim here is that a similar tax is a charge upon the property of the plaintiffs. The complete answer there was, as we submit it should be here, that the tax is upon the franchise; and it is difficult to perceive any reason why such franchises should not be taxed, except' only that through the grace of the state they have not been taxed. We may be permitted to adopt language here of Judge Fullerton, in Monroe Savings Bank v. Rochester, 37 N. Y., at page 365.
    In Pennsylvania, the following have been held to be franchise taxes: Tax on a mining company measured by the number of tons of coal mined, Coal Co. v. Commonwealth, 79 Pa. St., 100; a tax on net earnings, even though a part of the earnings was derived from nontaxable securities, Philadelphia Contributionship v. 
      Commonwealth, 98 Pa. St., 48; a tax on capital stock as such, Carbon Iron Co. v. Carbon Co., 39 Pa. St., 251; a tax measured by dividends, Phoenix Iron Co. v. Commonwealth, 39 Pa. St., 104.
    In Glasgow v. Rouse, 45 Mo., 479, it was held that the tax on income was a franchise tax, not a property tax, hence not in conflict with the provisions of the-constitution of that state requiring taxes to be levied on property according to its true value in money.
    In Massachusetts it is held that a tax of a certain per cent, on the capital stock of a corporation paid in is a franchise tax as distinguished from property tax. Bank v. Apthorp, 12 Allen, 252. Also a tax on savings banks measured by their deposits. Commonwealth v. Bank, 5 Allen, 428, and Commonwealth v. Bank, 123 Mass., 493. To the same effect see also, Coite v. Society for Savings, 32 Conn., 173.
    This case was taken by writ of error to the Supreme; Court of the United States. Society for Savings v. Coite, 73 U. S. (6 Wall.), 594.
    In Commonwealth v. Standard Oil Co., 101 Pa. St., 119, the court draws a distinction between franchise and property tax.
    Corporations by the terms of the act in question are' required to pay annually one-tenth of one per cent, on their capital stock. This is an imposition of a tax “according to nominal value.” It matters not whether the stock is worth eight hundred (800) per cent, of its. face value e. g. Standard Oil stock), or whether it is not worth one per cent, of its face value, the tax is the same, one-tenth of one per cent.
    We wish to again suggest, the stock as such is not taxed at all. 'It is not taxed in the hands of its owners. —the stockholders are its owners, the corporation is. not. Reference is made to the capital stock, not as. descriptive of the subject to be assessed, but as furnishing a basis of computing the amount of tax to be paid by the corporation. The subject-matter to be taxed is the corporation, and the amount of capital stock furnishes the basis for computing the amount. Hamilton Company v. Massachusetts, 6 Wall., 632, is a case Avhere the question as to whether the levying of a certain per cent, on the amount of deposits of a savings association was a franchise tax, or a property tax.
    Plaintiffs’ claim, at most, is that both their corporate property and franchises cannot be taxed; for, they say, this would be double taxation. Suppose that be true. What of it? Express companies have been assessed for years under the provisions of the Nichols law for their property taxes, R. S., Sec. 2777, 8, 9, 80; State v. Jones, 51 Ohio St., 492, and at the same time they have been compelled to pay an annual franchise-tax of two per cent, on their gross receipts. R. S. Secs. 2780-1 to 6; Express Co. v. State, 55 Ohio St., 69.
    It is unnecessary to remind this court of the fact that in appraising the express companies under the Nichols law the franchise to operate enters largely into the valuation. Indeed, the horses, wagons, safes, office fixtures, etc., constituting all the tangible property of these companies, would not amount in value to ten per cent, of the value as placed on them under the provisions of the Nichols law. They are appraised as a unit — as a going concern. The value of the stock is the criterion for their appraisement — not the value of the tangible property of the companies. Hence, of necessity, the value of the franchise to operate enters very largely into the assessment upon which the property tax is levied, and yet express companies must, in addition thereto, pay two per cent, on their gross receipts as a franchise tax.
    Companies required to pay a franchise tax of one-tenth of one per cent, on their capital stock under the provisions of the Willis law are appraised for their property taxes under the provisions of Sec. 2744, Rev. Stat. Hence, only their tangible property is assessed. Under this method of appraisement there are many corporations which are appraised at sums not to exceed one-tenth of the value as measured by the market value of the capital stock. The franchise to be a corporation of such companies is not considered in making their returns for taxation under the provisions of Sec. 2744. Hence, they cannot successfully maintain that the franchise to be a corporation has been taxed in any other manner than as provided in the act now ■under review.
    Let it be understood, however, even if this were double taxation, they could not complain.
    If it be claimed that the classification of corporations made in the act in question is a discrimination forbidden by the state and federal constitutions, Express Co. v. State, 165 U. S. 228; Bell's Gap Railroad v. Pennsylvania, 134 U. S., 232; Pacific Express Co. v. Seibert, 142 U. S., 339; Kentucky R. R. Tax Cases, 115 U. S., 321; Home Insurance Co. v. New York, 134 U. S., 594.
    The policy pursued in Ohio is to classify its objects of taxation, when the nature of their use, or the nature .of business engaged in, requires classification in the judgment of the legislature, in order to secure equality of the burdens of taxation, e. g. public service corporations are required to file with the auditor of state, annual reports exhibiting their gross earnings, and to pay a franchise tax of one per cent, of such gross earnings. Insurance companies of every class, building and loan companies, etc., are required to file annual reports with the superintendent of insurance, and also to pay an excise tax. Hence it is apparent that the burden of excise taxes is fairly distributed among the corporations for profit operating within the state.
   Burket, J.

The fee of one-tenth of one per cent, exacted from corporations in May of each year is an excise or franchise tax for general revenue. That such a tax may be constitutionally collected has been decided by this court in Telegraph Co. v. Mayer, 28 Ohio St., 521; Express Co. v. State, 55 Ohio St., 69; State ex rel. v. Ferris, 53 Ohio St., 314; and other cases, and is no longer an open question.

The state is a sovereignty and its powers are sovereign, except as limited and restricted by the constitution of the United States.

The grant of legislative power to the general assembly in section one of article two of the constitution is absolute, and is not limited in that section. The absolute and unlimited power of taxation is granted by that section to the general assembly, and the taxation may be upon franchises, privileges or property, as the general assembly may deem best; but when it comes to taxing property, there is a limitation placed upon that power by sections one, two and three of article twelve of the constitution, and by section four of article thirteen of the same instrument. By section one of article twelve, a limitation prohibits the levying of a poll tax for county or state purposes. By section two of the same article, all taxable property, real and personal, is required to be taxed by a uniform rule as its true value in money. By section three all property employed in banking is required to bear a burden of taxation, equal to that imposed on the property of individuals; and by section four of article thirteen, property of corporations is subject to taxation the same as the property of individuals. These are very important limitations upon the power of taxation of property granted by said section one of article two of the constitution, and are intended to secure uniformity and equality in taxation on property.

But upon the power to tax privileges and franchises there is no express limitation in the constitution, but certain limitations upon that power must be implied from other provisions of the constitution, so as to make the whole instrument harmonious and consistent throughout. The constitution was established to “promote our common welfare.” Preamble to the constitution. Government is instituted for the equal protection and benefit of the people. Section two of the bill of rights. Private property shall ever be held inviolate, but subservient to the public welfare. Section nineteen of the bill of rights. These provisions of the constitution are implied limitations upon the power of taxation of privileges and franchises, and limit such taxation to the reasonable value of the privilege or franchise conferred originally, or to its continued value from year to year. Ashley v. Ryan, 49 Ohio St., 504; State ex rel. v. Ferris, 53 Ohio St., 314, and Hagerty v. State, 55 Ohio St., 613, are examples of taxing the privilege or franchise conferred; while Telegraph Co. v. Mayer, 28 Ohio St., 521, and Express Co. v. State, 55 Ohio St., 69, are examples of taxing the continued value of the existing privilege or franchise from year to year.

These limitations prevent confiscation and oppression-under the guise of taxation, and the power of such taxation cannot extend beyond what is for the common or public welfare, and tbe equal protection and benefit of the people; but the ascertaining and fixing of such values rests largely in the general assembly, but finally in the courts.

A domestic corporation is given life, and continued ■existence by the state, and this life and existence with their accompanying powers constitute the franchise, and this franchise being valuable and given by the state, the state may impose a franchise tax thereon to the amount of the value thus conferred and con-, tinued, the same as in taxation by assessment, the public first bestows á special benefit upon the property, and then takes back by way of assessment a part or all it has thus conferred. Walsh v. Barron, 61 Ohio St., 15. A foreign corporation can do business in this state only upon such terms and conditions as the state may impose, and therefore a franchise tax may be imposed upon a foreign corporation for the privilege of doing business in this state. It therefore follows that a franchise tax may be imposed on both domestic and foreign corporations alike.

An excise tax may also be imposed on corporations to compensate the state for the additional burden sustained by the state and the people, by reason of property being held by artificial bodies, the persons com-, prising such bodies being exempt from liability to a great extent for the debts thereof. This ground of excise taxation was recognized in Adler v. Whitbeck, 44 Ohio St., 539, and was there applied to the liquor traffic, because that business was there shown to impose additional burdens upon the state. So the aggregation of capital by corporations imposes additional burdens, and requires regulations not applicable to individuals.

It is urged, and truly, that the capital paid in by the stockholders becomes invested in property,- and that taxes are paid thereon the same as individuals pay upon their property. Then it is urged secondly that this exaction of one-tenth of one per cent, on the subscribed or issued and outstanding capital stock, is an additional tax on the same property or capital, and that thereby double taxation results. But this second proposition is not true, because the exaction of one-tenth of one per cent, is not a property tax on property owned by the corporation, but is an excise tax the amount of which is fixed and measured by the amount of subscribed or issued and outstanding capital stock. To constitute double taxation, both taxes must be property taxes, and both on the same property. Here one tax is a property tax, and the other an excise or franchise tax, and therefore there is no double taxation.

The limitation in section four of article thirteen of the constitution, which prohibits double taxation of the property of corporations, applies only to taxation on property, and not to taxation of privileges or franchises. What is said in Cleveland Trust Co. v. Lander, 62 Ohio St., 266, as to that limitation, is solely as to property taxation. That section of the constitution plainly shows that it applies to property taxation only, and has no reference to excise, or franchise taxes. The section is as follows: “The property of corporations, now existing orhereafter created, shall forever be subject to taxation, the same as the property of individuals.”

The stock of a corporation is not its property, and is not owned by it, but by the several stockholders. It owes and not owns the stock. The stock is a liability of the corporation, and not an asset; and being a liability it cannot be taxed, because in property taxation the tax must be upon the true value in money, and a liability can have no such value. So that, this exaction of one-tenth of one per cent, is not a tax against the corporation on stock owned by it, but is a franchise tax the amount of which is fixed and graded by the amount of subscribed or issued and outstanding capital stock.

In Railway Co. v. State, 49 Ohio St., 189, it was held that an act requiring a fee of one dollar per mile of track to be paid by every corporation operating a railroad in this state, was unconstitutional, as being in conflict with sections two and five of article twelve of the constitution; and it is urged that as that fee or tax of one dollar per mile in addition to the general taxes paid on the railroad was unconstitutional, this fee or tax of one-tenth of one per cent, on the stock is also unconstitutional. But that does not follow. The track of the railroad was property, and was OAvned by the company, and the one dollar per mile was a tax on property, and was in addition to the general tax paid on the true value in money, and was more than on property of individuals, and was therefore in conflict, not only with said section two of article twelve of the constitution, but also in conflict with said section four of article thirteen of the same instrument. But in the case at bar the tax is not a property tax,, and the stock is not owned by the corporation, as already explained, and therefore the case of Railway Co. v. State, is not like the case at bar, and does not rule the same.

The tax of one-tenth of one per cent, on the amount of the subscribed or issued and outstanding stock, is not unreasonable, and does not appear to be above the continuing value of the franchise of corporations from year to year, and is therefore within the clear power of such taxation by the general assembly.

The act in question is not void for uncertainty als urged by counsel, but is in all respects a valid and constitutional statute.

Judgment affirmed.

Spear, Davis, Shauck and Price, JJ., concur.  