
    Central Granaries Company, appellant, v. Lancaster County, appellee.
    
    Filed October 18, 1906.
    No. 14,314.
    1. Taxation: Assessment. Section 66, eh. 78, laws 1903, provides that grain brokers shall be assessed on the average amount of capital invested in the business for the preceding. year, instead of on the amount óf grain on hand on the first day of April.
    2. Double Taxation. Taxing a grain company on its real estate and other tangible property, on the amount of its average capital, and also on the grain contained in its elevators on the first day of April, is, to the extent of the grain so assessed, double taxation, from which, in a proper proceeding, the courts will grant relief.
    Appeal from the district court for Lancaster county: Albert J. Cornish, Judge.
    
      Reversed.
    
    
      Sail, Woods & Pound, for appellant.
    
      F. M. Tyrrell, J. L. Caldwell and C. E. Matson, contra.
    
    
      
      See opinions on rehearing, pp. 319, 327, post.
      
    
   Barnes, J.

The appellant is a corporation organized and existing under the laws of this state. Its main office is in Lincoln, Lancaster county, Nebraska. It owns and operates about 50 elevators, mostly in this state, and its business is that of buying, cleaning, selling and shipping grain to the .various markets of the world. It owns and operates elevators at some 40 different towns, situated in several different counties throughout the state. It also owns elevators at Lincoln, Rulo and Holdrege, called cleaning elevators. The manner of conducting its business is such that in handling, disposing of and shipping its grain to market it all passes through the cleaning elevators at Lincoln, Rulo or Holdrege. It buys no grain at its Lincoln cleaning elevator, and the grain that goes through this elevator comes from some of its outside elevators, situated in other counties in different parts of the state, where it is originally purchased. In 1904 appellant made its return under oath to the assessor of Lancaster county of its property subject to taxation in that county, which return was in substance as follows:

Capital stock .f350,000
Surplus and profits. 70,000
Total valuation of stock. $420,000
Property assessable in Lancaster county (itemized) . $83,265
Property outside of Lancaster county otherwise assessed. 336,735
Total valuation of stock.'. $420,000

The assessor of Lancaster county raised the amount of the property scheduled as assessable in that county $10,000 to cover the grain in appellant’s elevator in the. city of Lincoln. Objections thereto were filed with the board of equalization. A hearing was had, the objections were overruled, and the case was appealed to the district court, where a trial resulted in the dismissal of the appeal, an aifirmance of the order of the board of equalization, and an appeal therefrom was taken to this court.

The bill of exceptions establishes the following uncontro-verted facts: First. The appellant’s capital stock and surplus was $420,000, which represented all of its property. $83,265 worth of that property was situated and taxable in Lancaster county. The remainder of it, to wit, $336,735 worth, was not used in Lancaster county, but was located and used in other counties. Second. The appellant’s Lincoln elevator is a transfer and cleaning house, and no grain goes into that elevator except grain in transit, on its way from the company’s elevators situated in other counties. Third. That the item in controversy, to wit, $10,000 worth of grain in. appellant’s Lincoln elevator, was grain in transit. It is claimed by appellant that this grain in transit was purchased by, or represented a part of, the $336,735 of capital located and used in counties other than Lancaster, and had theretofore been assessed in said counties. It is contended by the appellee that the testimony- does not sustain the foregoing claim.

We find that F. D. Levering, appellant’s assistant treasurer, testified in substance that the capital stock and surplus of the company in 1904 Avas $420,000; that his company owned and was then operating from 45 to 52 elevators in Nebraska and Kansas, 8 or 9 in Kansas and the remainder in Nebraska; that the only elevator the company liad in Lancaster county, outside of Lincoln, was at Waverly; that the only place the company buys grain in Lancaster county is Waverly; that it was not using any of its capital in buying grain in Lincoln; that the company bought no grain in Lincoln; that all of the capital of the company other than the amount invested in permanent improvements was used in buying grain at points outside of the city of Lincoln; that all of its capital, except the listed items reported and assessed in Lancaster county, to Avit, $336,735, was invested in grain elevators and grain outside of Lancaster county; that all of this portion of the company’s capital Avas located and was being used by the company in other counties than Lancaster; that it was invested in elevators, cribs, scales, gas engines and grain.

E. J. Herring, avIio Avas in the employ of the appellant company, and Avho has especial charge of the assessment of its property in this state and Kansas, testified as follows: “Q. At the company’s outlying elevators in other counties than Lancaster county, do you know what method the assessors of the various counties adopted in arriving at the amount of capital stock the Central Granaries Company Avas using at these elevators located in these various counties? A. Yes, sir. Q. State to the court whether or not the assessors where these various elevators were located arrived at the amount of capital that you had invested at that particular point by taking into consideration the Avhole year’s business, or volume of business for the year, in getting at the amount, the average amount of capital invested to the first day of April? A.. Yes, sir. Q-. And for those computations do you furnish the boots to the assessors at these various places? A. Yes, sir; we did. Q. And did they take into consideration, in arriving at the amount of capital that you had invested there, all of the grain purchased during the year, from April 1, 1903, to April 1, 1904? A. Yes, sir.”

On cross-examination the witness further stated: “A. They took the average capital, the com cribs, the elevator, the gas engine, and the bank account, and the horse power, and any other tangible property we had. Q. And added it to the average capital or subtracted it? A. Added it to the average capital. Q. Did they add the real estate? A. We have no real estate.- Elevators are personal property. Q. They added the personal property to the average capital? A. Yes, sir. Q. And the cash on hand? A. Yes, sir. Q. And the grain on hand? A. No, sir; I did not say that. Q. That is a part of your tangible property, is it not? A.. No, sir; that is figured in this average capital.”

The only evidence introduced by the appellee was the testimony of the county assessor, the instructions of the state board to county assessors, and the intructions of the Lancaster county assessor to his deputies. None of this testimony in any way controverts the evidence above quoted. Prom the foregoing, we are of opinion that the evidence is sufficient to show, prima facie, that appellant was assessed in the various counties where it was engaged in business (outside of Lancaster county) to the amount of $336,375 as average capital employed in its business in said counties.

The appellant contends that, the action of the taxing officers of Lancaster county in adding $10,000 to its schedule for grain in its Lincoln elevator subjects it to double taxation to that extent, and the district court erred in refusing to grant it the relief prayed for by its petition. If its property in other counties had theretofore been assessed for taxation in the manner provided by law, then its contention is well founded.

That appellant is a grain broker, within the meaning of section 66, ch. 73, Laws 1903, commonly called the “New Revenue Law,” and should be assessed in the manner therein pointed out, is beyond question. That section reads as follows: “Every person, company or corporation engaged in the business of buying and selling grain for profit, shall be held to be a grain broker, and shall, at the time required by this act, determine- under oath the average amount of capital invested in such business, exclusive of real estate or other tangible property, assessed separately, for the preceding year, and taxes shall be charged upon such average capital the same as on other property. For the purpose of determining the average capital of such grain broker the county assessor or deputy assessor shall have the right to inspect all books of account and the checkbooks of such grain broker and shall determine and fix the amount of such capital by such inspection.” As we have already seen, the appellant, before it returned its schedule to the assessor of Lancaster county, listed $336,375 of its average capital in other counties. And this brings us to the consideration of what is meant by, or included in, the words “average capital” as used in the section of the revenue law above quoted.. It would seem that the legislature recognized the difficulty which would arise in attempting to assess grain brokers on the amount of grain on hand on the first day of April. If that method of assessment should be adopted, then it is safe to say that grain dealers would have no grain on hand at that time. If-the plan of assessing the capital stock of corporations dealing in grain, wherever such company or corporation is located, should be adopted, we might find all of such capital was invested in’ grain, stored in various elevators throughout the state, which would have to be assessed where located and this would result in double taxation. So, in order to adopt a method Avhich should he fair to the broker, and at the same time tax the whole of his property, the legislature, by the section in question, provided for taxing the average capital used in the business for the previous year, wherever such business Avas conducted. In order to properly carry out that plan, it further provided that the broker should furnish his checkbooks and all his books of account to the assessor, avIio is required to determine “by inspection” the amount of such average capital. The laAv does not, in terms, provide for the taxation of both the average capital used by the broker in his grain business and the grain purchased themvith, and such could not have been the intention of the legislature. The average capital used in the business evidently means the money used in buying grain, and all of the money so used. By taxing this average capital, it makes no difference what amount of grain is on hand on the first day of April of each year. On that day it may have all been sold, and yet, by taxing the average capital in the place of the grain, the broker would be required to contribute his just proportion to the public revenue. The average capital today may be represented by money, Avhile tomorrow it may be invested in grain purchased and on hand. Again, on the next day the grain may be sold, and the proceeds thereof Avill then constitute a part, or perhaps the AAhole, of the broker’s a Average capital. Again, it Avould seem that the legislature has made a clear distinction between that part of the .broker’s capital used in the business, that is to say, in buying, selling, shipping and handling grain, and that part of it invested in other tangible property convenient and necessary for the purpose of conducting such business.. We take it that by the words “average capital” is meant so much of the whole capital of the grain broker as is used in handling grain, and not that portion Avhich is invested in tangible property for the purpose of successfully conducting the grain business. In construing a statute the court should, if possible, give a reasonable meaning to all of its words and phrases. All tangible property must be taxed as such, unless otherwise provided by law. The law in question clearly implies that all of the tangible property of the grain broker, except grain purchased and sold, must be taxed as such. And to hold that the grain which he may happen to have on hand must be taxed, ih addition to the average capital used in its purchase, would render the words “other tangible property assessed separately” meaningless. That grain is tangible property no one will dispute. But it seems clear that it was intended by the legislature that it should not be embraced in the words above quoted. So, we are of opinion that the average capital required to be listed by the grain broker was intended by the legislature to cover and stand in the place of all grain purchased and sold by him. To assess such grain, in addition to the assessment of his average capital, as above defined, amounts in fact to double taxation, which no one will contend is permissible.

It is contended by the appellee that the' rule that a taxpayer who appeals to the district court from the action of the board of equalization in matters of assessment has the burden to show that the decision of the board is erroneous, requires us to affirm the judgment of the district court. It is a sufficient answer to this contention to say that the evidence contained in the record establishes prima facie, at least, the contention of the appellant; and where there is no dispute as to the facts, and the record shows forth the action of the board, together with the evidence on which such action is based, the matter then becomes a question of law to be determined by the reviewing court, and not one of fact. In such a case the presumption invoked has no application. It appears from the record that the reason given by the assessor for adding the $10,000 in question to the appellant’s schedule was that he was not satisfied that the appellant’s average capital had been properly assessed in other counties throughout the state. Neither the assessor nor tbe board of equalization of Lancaster county has any power or jurisdiction to review the action of the assessors and boards of equalization in other counties, and when it was shown by the appellant’s evidence that it had listed its average capital in such outside counties, and it was there assessed, that fact raised the presumption that the taxing officers of such counties had correctly performed their duty.

Lastly it is contended by the appellee that the tax on the average capital of grain brokers, provided for by the section in question, is a tax on the business, or, in other words, a business tax, and is not a property tax within the meaning of the constitution; that, in addition to such business tax, it was proper, and it had the right, to tax the grain in question. That the legislature has the power to provide for taxing the business of grain brokers is beyond question. But that it has not done so seems clear. A business tax is defined to be- a tax on the privilege of carrying on a business or employment, and is commonly imposed in the form of an excise tax on the license to pursue the employment. It is usually a specific sum, or a sum whose amount is regulated by the business done, or the income or profits earned. Such, for instance, as 2 per cent, on the gross premiums of an insurance company, or any given per cent, on the volume of the particular business conducted. The statute in question, however, makes no such provision. On the "contrary, it states in plain terms that “taxes shall be charged upon such average capital the same as on other property.” The average capital is thus treated as property, and the amount of the tax levied thereon depends upon the rate of taxation for all 'state, county and municipal purposes, the same as though levied on real estate, or other tangible property..

We are therefore of opinion that the district court erred in dismissing the appeal herein, and that the appellant is entitled to the relief sought.

For the foregoing reasons, the judgment of the district court is reversed and the cause is remanded for further proceedings according to law-

Reversed.

Letton, J., dissents.

The following opinion on rehearing was filed July 12, 1907. Former judgment of reversal vacated and judgment of district court affirmed:

1. Taxation: CLASSIFICATION: Constitutional Law. The classification (laws 1903, ch. 73, sec. 66) of “every person, company or corporation engaged in the business of buying and selling grain for profit” as a “grain broker,” for purposes of assessment, and providing for the assessment of the average capital of grain brokers, is not unconstitutional.
2.-: Assessment. The amount of capital invested in a business ordinarily is the whole amount of money invested and used in carrying on that business. ■ The average capital of a grain dealer is defined by section 66 of the revenue law to be the average amount which the total investment in the business of the grain dealer exceeds the tangible property which can be separately assessed at the time of assessment. The assessor, from the examination pointed out in the statute, must find what capital of the business there was, if any, from time to time during the tax year, not including in the computation the tangible property on hand and capable of assessment at the time of assessing, and the average or mean of the capital so found is to be assessed as property in addition to the tangible property.

Sedgwick, C. J.

The facts in this case, so far as the essential questions' of law involved are concerned, may be found in the former opinion, ante} p. 311. A rehearing was granted, new briefs have been filed, and oral argument heard thereon. The plaintiff is a corporation engaged in buying and selling grain. It operates a large number of grain elevators located in different counties of the state. Among* them it operates an elevator in Lancaster county for the transfer and cleaning of grain in transit to eastern markets.. It returned to the assessor of Lancaster county for taxation a statement of its capital stock, its surplus and profits, and an itemized statement of its tangible property assessable in Lancaster county. In this statement Aras not included $10,000 Avorth of grain in its Lincoln elevator. The assessor added this property to the schedule, and Avhother he erred in so doing is the question to be decided. Section 66, ch. 73, Iuavs 1903, is quoted in the former opinion. Several of the provisions of this section have been debated in this case.

1. The section of the statute under consideration provides that “every person, company or corporation engaged in the business of buying and selling grain for profit, shall be held to be a grain broker,” and it is largely from this provision that attorneys for defendant draw their argument that the taxation imposed by this section on average capital is an occupation tax. Section 1, art. IX of the constitution, authorizes the legislature to tax peddlers, auctioneers, brokers, and others named, “in such manner as the legislature shall direct.” It is, hoAvever, not to be supposed that the purpose of the legislature in providing that a dealer in grain “shall be held to be a.grain broker” Avas to enable it to levy an occupation tax upon grain dealers, and so evade the above provision of the constitution. To determine what class of persons may be included in the term broker for the purpose of levying a.n occupation tax, it Avould be necessary to ascertain the true definition of the Avord broker as that term was generally understood at the time of the adoption of the constitution. The legislature could not enlarge its poAver to levy an occupation tax by extending the meaning of the words employed in the constitution beyond their reasonable and generally accepted significance Avlien adopted. A different purpose is apparent in adopting a specified term to be applied to dealers in grain. The fact that the Avords “grain broker” are used instead of some other words is of no significance. By this section the legislature provides a manner to ascertain the value of the property of “persons, companies or corporations engaged in the buying and selling of grain for profit,” in some respects different from that employed in general. They are classed as grain brokers and are to he assessed upon their average capital. If the legislature has power to “require the assessment of average capital” instead of the assessment of the property owned at some specified time, and if there is a special and sufficient reason for ■ using this method in assessing those engaged in buying and selling grain for profit, a reason that does not apply to assessment in general, then there can be no doubt of the power of the legislature to so classify such interests for assessment. Rosenbloom v. State, 64 Neb. 342. Some reasons are stated in the former opinion for assessing average capital invested in dealing in grain. In addition to what is there said, we quote" the following very apt suggestions from the plaintiff’s brief: “But the capital invested in the business is continually changing form from money to grain and then back to money. Hence, if taxed as grain, at a time when the grain on hand had all or for the most part been sold, but a fraction would be reached; if taxed as money, when a large amount of grain was on hand, but a fraction would be reached; if assessed both as grain and as money, the one being a mere form of the other, the same capital would be taxed twice; if assessed by taking the sum of the grain and the money on hand April 1, the danger would be that money is easily juggled and concealed. If an arbitrary date were taken, there would be a likelihood that grain brokers would have very little grain on hand and very little money on deposit on that day..” It is, however, contended in the defendant’s brief that the assessment of average capital is not the assessment of property within the meaning of the constitution, and therefore it is beyond the power of the legislature to provide for assessment in that manner, except as an occupation tax. This argument is not convincing. It will be conceded that the legislature might require the property owned by the taxpayer on the 1st day of May, or on any other specified day of the year, to be Talued for taxation, as well as to select the 1st day of April for that purpose. The requirement of the constitution is that the value of the taxpayer’s property for assessment shall be “ascertained in such manner as the legislature shall direct.” Property necessarily fluctuates in value, and ownership is changed from one person to another, so that if the average value during the year could be accurately ascertained it would furnish the true basis for taxation. Taking the value of each individual on some given day of the year is supposed to be, in ordinary cases, the most practicable method of reaching a just equalization of property for assessment..

2. A very important question in this case, and one that has been very much debated, is Avhat is meant by average capital as used in the statute referred to. Tn our former opinion it was said: “Average capital used in the business evidently means the money used in buying grain, and all of the money so used.” It is also considered in that opinion that grain in elevators is a part of the average capital of the business, and, being assessed as a part of such average capital, it cannot be separately specifically assessed. This led us to the conclusion that the assessor erred in placing the grain in plaintiff’s elevator in Lincoln upon the schedule for assessment. The average capital of the business is generally understood to mean all of the money invested in the business and would include all property used in the business..

There is in New York a general statute which provides that nonresidents of the state doing business therein shall be taxed on the capital invested in such business as personal property. It was held that by the words “capital invested in such business” ivas meant the money which was put into the business with the intention that it shall be used in the transaction of the business. People v. Feitner, 67 N. Y. Supp. 893. This is the ordinary use of the word capital. Does the use of these words in this section of the statute and the connection in which they are used require us to inferna different meaning? It is said that the words “other tangible property” used in connection with the words “real estate” in specifying what shall not be included in the average capital must be construed to mean other like tangible property, that is, other tangible property of the character.of real estate. It is suggested that the connection in which these words are used and the subject matter of the section indicate this intention of the legislature. The constitution requires that all property of every nature be in some manner valued for taxation, and be required to bear its share of the public burden. The construction thus contended for does not seem to be more usual and natural than to consider the words used as equivalent to “all tangible property including real estate.” If, in ascertaining the average capital for assessment as such, we include all tangible property that is capable of being assessed separately, including real estate, and deduct the value of all property already separately assessed, the object of the legislature would seem to be reached. This is analogous to the manner prescribed for assessing banks. The value of the capital stock of a bank for assessment is ascertained by taking the sum of its liabilities from the sum of its assets, and from this valuation of the stock, when so ascertained, is deducted for assessment the value of the tangible property that is otherwise assessed which enters into the valuation placed upon the assets. This, of course, gives the same valuation of capital stock for assessment as would be obtained by excluding all tangible property otherwise assessed in computing the assets of the bank, and we see no reason for giving any other construction to the section of the statute under consideration. This construction of the statute requires that the tangible property of a grain broker, iñcluding real estate, be assessed in precisely the same manner as the property employed in other ways is assessed.

A similar idea is found in the statutes of the state of Louisiana. Their revenue act contains the following declaration: “In assessing mercantile firms the true intent and purpo.se of this act shall be held to mean, the placing of such value upon the stock in trade, all cash, whether borrowed or not, money at interest, open accounts, credits, etc., as Avill represent in their aggregate a fair average on the capital, both cash and credit, employed in the business of the party or parties to be assessed.” The supreme court of that state had occasion to construe that statute in Swift & Co. v. Board of Assessors, 115 La. 322, 38 So. 1006. The court also discussed the meaning of the words “a fair average on the capital employed in the business.” A definition of average is quoted from the Standard Dictionary: Average is “obtained by calculating the mean of several amounts, numbers, or quantities.” The plaintiff in that case was engaged “in buying and selling of fresh meat shipped to the city of New Orleans in carload lots.” The question involved was as to the proper method of ascertaining the fair average capital employed in the business. In the statement of the case by the court the following language occurs:

“In assessing the merchandise or stock in trade, the taxing authorities took the total amount of meat received during the previous year, and divided the same by 12, thus reaching what is called the ‘average’ value of stock on hand during the previous year.” In regard to this method of obtaining the average value, the court said: “The assessors’ contention is that the monthly receipts of merchandise during the year should be added together, and their sum total divided by 12. This method necessarily counts merchandise sold during the month as a part of the stock on hand at the end of each month, and is an assessment of the amount of purchases, rather than of stock on hand. As the money or credits received from sales are also taxable, this method would lead to double taxation, in contravention of the express provisions of section 7, which declares that no property shall be taxed twice in the same year.’ Tinder the assessors’ rule, a merchant whose entire capital is $5,000 might be taxed on $10,000 on stock in trade, if he each month sold $5,000 of merchandise, and reinvested the proceeds in other merchandise. On the same theory a butcher or other vendor of perishable commodities, who buys and sells from day to day $100 worth of stock, might be taxed on $3,000 of capital. The circumstance that the merchant or dealer turns over his capital every six months, or every month, or every day does not affect the question. His capital, plus profits or minus loss, remains the same; and it is this average capital, represented by merchandise, money, rights, credits, which the statute intends to reach.”

The court said that their statute does not provide “that the capital eo nomine shall be assessed, but that all the elements which enter therein shall be so valued as io represent a fair average of the capital employed.” The same may be said of our statute, if we look to its intention and results. While our statute names “average capital,” and declares that “taxes shall be charged” thereon, and so, when taken literally, requires average capital to be assessed in that name as an element of property, still the result and the manifest intention of the statute is to enable the assessing authorities to ascertain the proper assessable value of all the property used in the business. We may then say with the Louisiana court: “The meaning of the proviso, therefore, is that the average amount of stock, money, rights, credits, etc. (including real estate), which may vary through the year, shall be taken as the basis of assessment.” That is, all property, real and personal, used in the business is to be .assessed, and if the assessor, from the examination of the books, etc., which the statute requires him to make, finds that the property so assessed is less than the property (including money on hand or in bank, and real estate) in use in the business at other times during the preceding tax year, he ascertains from the books of account and checkbooks of the grain broker how much more property has been in use in the business at other times during the year than is so used at the time of the assessment. For instance, if he finds no grain, or but a small quantity, on hand at the time of the assessment, and that at other times during the year there have been large quantities of grain on hand, and that all other elements of the net assets of the business have remained substantially constant, he should ascertain from the accounts, etc., how much .this excess of grain on hand has been from time to time, and the average or mean of this excess (in the statute denominated “average capital invested”) should be added to the assessment of the visible and tangible property. The true average capital would be the average sum invested in the business from time to time. The statute, however, points out the way to find what part of the true average capital has not been reached by the assessment of the tangible property found at the time of assessment, and requires the. assessment to be corrected by adding this excess. If this is the true interpretation of the statute, then the assessor should value for taxation all of the property of the person, company or corporation engaged in the buying and selling of grain for profit, including real estate and grain on hand, and should then ascertain, in the manner that the statute points out, whether the average capital invested in the business during the preceding tax year was greater than the capital which he has so assessed, and, if he finds that it was greater, then he should add to his assessment such excess of the average capital invested. In this case the plaintiff omitted from its statement of property, for taxation the amount of its grain on hand, and the assessor properly added this amount to the assessment. By its judgment the district court approved of this action on the part of the assessor and was right in so doitíg.

The judgment heretofore entered in this case is vacated and the judgment of the district court affirmed.

Judgment accordingly.

Barnes, J.

For the reasons given in our former opinion, I dissent from the foregoing conclusions.

The following opinion on motion for rehearing was filed October 16, 1907. Rehearing denied:

1. Taxation: Avebage Capital. The average capital of grain dealers, mentioned in section 66 of the revenue law (laws 1903, ch. 73), is not the average of the total capital used in the business, but is the excess of such capital over the real estate and other tangible property which can be viewed by the assessor and “assessed separately.”
2. Average capital is not average purchases, nor average sales, and cannot be found by adding together the amount of purchases or the amount of sales during the year, and dividing the sum by an arbitrary divisor.
3. Average capital is the average of the amount of cash and all other property of every hind used in carrying on the business; and, if there is an excess of this average of capital over the amount of real estate and other tangible property that can be viewed by the assessor, then such excess is to be added for assessment.

Sedgwick, C. J.

The appellant has filed in this case a brief in support of a motion for a rehearing. From this brief it appears that the opinion herein is not at all understood by counsel for appellant. Speaking of the opinion the brief says: “It is vague, hazy, indefinite, and muddy as it can be, and I speak respectfully. It furnishes no definite rule or guide that can be followed either by the assessor or the grain broker.” The case is one of very much importance. The opinion is supposed to be a guide for assessors in all parts of the state in assessing grain dealers. If the court has failed to. so state its views as to enable the learned and able counsel for appellant to understand them, it would seem to be desirable to attempt to make the opinion clearer, so that assessors, who are not supposed always to possess the legal acumen of appellant’s counsel may be able to understand the construction which the court attempts to give to this statute. Counsel understand that the average capital of a grain dealer is to be found by adding together all the purchases of grain during tbe year and dividing tbe total amount by some indefinite number selected at random. An extended illustration of tbis proposition advanced by counsel is given in tbe brief, and we will quote it in full as a basis of our explanation of tbe views of the court. It is as follows: “Let me give a practical concrete illustration of this proposition, for tbe purpose of testing its accuracy, and of showing that tbe above statement is correct. Let it be admitted that tbe volume of business at Friend, Nebraska, for the year 1905, was $65",000, that is, that there was purchased at that point by tbe appellant during tbe year 1905, altogether, $65,000 worth of grain. Tbis was made up of a great number of items that were purchased during tbe year and is tbe aggregate of all of the different purchases made by that company at that point during the year. Now, if Ave use 20 as the divisor for the purpose of getting the average capital on any given day (I take 20 as the divisor because that is the number used in this county and many others), I shall get the average capital, which Avill be $3,250. Now, suppose one of the items that goes to make up the $65,000 is a $5,000 purchase of grain which is still in the elevator at the date of assessment. Should this grain be assessed separately as tangible property? If so, then the assessment would stand thus:

Average capital.$3,250
Amount on hand as tangible property.... 5,000
Total assessment .$8,250

Can it be successfully contended by anyone that in this method or process you have not assessed the $5,000 of grain twice, once as average; capital and once as tangible property?” This proposition of counsel shows two important particulars in which the court has been misunderstood :

First. We do not consider that average capital can be found by adding the total of purchases during the year and dividing that amount by any number whatever, much less by an indefinite number selected at random. If the grain dealer should purchase $10,000 worth of grain each day during the year, or on each one of 300 days during the year, and should sell the grain so purchased on each succeeding day, the total amount of purchases would be $3,000,000, and if we select the divisor at random, say 20, “because that is the number used in this county and many others,” we would have an average capital of $150,000, whereas the capital needed for such transactions during the year would be only $20,000. The amount received for the second day’s sale could be used for the third day’s purchase. It is very plain that the average of the purchases Avould not be the average of the capital, invested, and this fundamental error runs through the entire brief. The average capital could not in any event be ascertained by using an arbitrary divisor. In the above demonstration taken from the appellant’s brief the divisor 20 is used “because that is the number used in this county.” Manifestly counsel would have as readily accepted any other number as a divisor. If he had happened to have selected 25 as a divisor the average capital Avould have been $2,600 instead of $3,250. If he had taken 12, the number of months in the year, as a divisor, as was done in the Louisiana case cited in the opinion, the average capital would have been $5,416.66|; and, again, if he had selected 52 as a divisor, the number of weeks in the year, the average capital would have been $1,250. Manifestly the average capital used in a given business cannot be ascertained by such methods.

Second. Counsel understands the opinion to mean that the average capital used in the business is to be ascertained by some method and is to be assessed at all events, and, in addition to this average capital, the real estate and all tangible property is to be assessed also, whereas the view of the court is that all tangible property of a grain dealer is to be assessed in precisely the same manner as the property of other persons and corporations is assessed. In addition to this, the assessor is to ascertain whether this result is a fair assessment of the grain dealer’s property used in the business. If he finds no grain or cash on hand, and all other elements of the property used in the business remain substantially constant during the year, it would be manifest that by assessing the tangible property found by the assessor he would not have reached all of the property used in the business. It is only in such case that he is required to assess average capital, and it is not the total average capital that he is to assess, but it is the average amount of capital invested in the business, exclusive of real estate and other tangible property assessed separately.. If the real estate and other tangible property which is assessed is not equal to the money and property used in the business on an average during the year, then he is to add to the value of the real estate and tangible property an assessment of .the average amount of capital in excess of the real estate and tangible property. This average amount of capital in excess of the real estate and tangible property he is to determine from the books of account and checkbooks, as pointed out in the statute. In determining this excess of capital above the amount which he finds as tangible property, he is not confined to the purchases of grain nor to the sales of grain, nor is he to use arbitrary divisors. If the grain dealer is to be assessed only upon the property in sight on any given day, and we suppose that he is dishonest enough to seek to avoid taxation, his cash and grain can be so manipulated by him as to bring about that result. If, on the other hand, we suppose (which would, of course, generally , be the case) that he is honest and does not resort to manipulation, then he might be in some cases unjustly taxed. But the law does not assume that he will accumulate grain on the first day of April for the purpose of swelling his assessment. There are, of course, manifest difficulties in the way of accurately determining in all cases the average amount of capital used during the year in excess of the real estate and other tangible property which the assessor can view on the first day of April. The legislature evidently supposed that this difficulty in determining the excess of the capital used is not so great as to malee it necessary to allow grain .dealers to escape a fair assessment by placing their grain and cash beyond the view of the assessor on the first day of April. No scheme of assessment is perfect. If it comes as near an exact equality of assessment as the circumstances of the case will admit, and no manifest injustice is done, it is all that is required.

We think that the statute in question meets this requirement, and that the construction which we have given it is the correct one.

The motion for rehearing is

Overruled.  