The People v. Commissioners of Taxes and Assessments. "personal estate" and "personal property" as follows: "The terms 'personal estate' and 'personal property' shall be construed to include such portion of the capital of incorporated companies liable to taxation on their capitals as shall not be invested in real estate." (R. L. of 1827, p. 224, § 3.) This definition of these terms remains unchanged. (Sec. 3 of tit. 1 of ch. 13 of part 1 of R. S.) III. The writ of mandamus should be denied. By the Court, SUTHERLAND, P. J. By § 42 of the act of April 5th, 1813, (2 R. L. of 1813, p. 521, 522,) all stock in the funds of the United States, or in any other funds, and all bank stock, or stock in any other company, was, eo nomine, taxable as part of the individual's or person's personal estate. The act spoke only of persons, yet it seems that the supreme court of this state decided that corporations were liable, under the act, to be taxed for property owned by them. (The People v. Utica Ins. Co., 15 John. 358. Opinion of Thompson, Ch. J. p. 382.) By § 4 of the act of April 23, 1823, (Laws of 1823, p. 391,) "bank stock and all other kinds of stock" were called personal estate, or personal property; and by that section, "bank stock, and all other kinds of stock," eo nomine, were declared subject to taxation. By § 5 of the act, taxes were to be imposed according to a valuation by the assessors of real and personal property. By § 10 it was provided, in case any person, not satisfied with such valuation, should make oath before the assessors, that the value of the personal estate owned by such person, did not exceed, after deducting his or her debts, and money vested in such stocks as thereinafter provided, a certain sum to be specified in the oath, or that his or her real estate was not worth more than a certain sum, &c. then the assessors were to value such real and personal estate at the sum so specified, &c. By § 14 of the act, the amount of capital stock of incorporated companies, paid in, or secured to be paid in, is called personal property; and by that section all incorporated companies receiving a regular income from The People v. Commissioners of Taxes and Assessments. the employment of capital were taxable on the amount of capital stock paid in, or secured to be paid in, (excepting thereout the amount vested in real estate, the amount of such stock held by the state, or by any literary or charitable institution,) as personal property. It is plain from the whole act, particularly from the sections which have been referred to, and sections 15 and 16, not only that it was the intention of the legislature, by the act, to tax corporations liable to taxation under it, on their capital, or capital stock, or the amount of their capital stock actually paid in or secured to be paid in, excepting therefrom the amount vested in real estate, &c. as personal property, irrespective of the manner in which the capital or capital stock had been, or might be employed or invested, but also, that it was the policy and intention of the legislature, by the act, instead of taxing the stockholders individually, for or upon their respective shares of or interest in the capital stock of a corporation liable to taxation on its capital, under the act, as individual, personal property, to tax such corporation by its corporate name, for or upon the shares of all of its stockholders, in the aggregate. This, the act in effect did, by declaring such corporation liable to taxation by name, on its capital, or the amount of its capital stock paid in, or secured to be paid in. A stock corporation may be viewed in two aspects; in the abstract, or in the concrete. Viewed in the abstract, it is an immaterial, artificial being, created by law, and deriving all its powers from law; viewed in the concrete, it is composed of its individual shareholders or stockholders. It was the policy and intention of the act of 1813, to tax such corporations, viewed in the latter aspect; it was the policy and intention of the act of 1823, to tax them, viewed in the former aspect. Under either act, the tax was upon the capital stock, or the shares of the capital stock, as personal property, and as a thing or things distinct and different from whatever the capital stock had been, or might be invested in. The revised statutes, in providing for the taxation of mon The People v. Commissioners of Taxes and Assessments. eyed or stock corporations, adopted the principle and policy of the act of 1823. They declared public stocks, and stocks in moneyed corporations, eo nomine, to be personal estate, or personal property; and also such portion of the capital of corporations, liable to taxation on their capital, as should not be invested in real estate. (1 R. S. 388, § 3.) They also declared that the owner or holder of stock in any incorporated company, liable to taxation on its capital, should not be taxed as an individual, for such stock. (1 R. S. 388, § 7.) They declared that all moneyed or stock corporations, deriving an income or profit from their capital, or otherwise, should be liable to taxation, on their capital, in the manner thereinafter prescribed. (1 R. S. 414, § 1.) The provisions of the subsequent sections, (§§ 2, 6, 7, &c.) were such that, by the revised statutes, such corporations (excepting manufacturing and turnpike corporations,) were taxable on the capital stock paid in, or secured to be paid in, excepting therefrom the sums paid for real estate, and the amount of such capital stock held by the state, and by any incorporated literary or charitable institutions, as personal property, irrespective of its actual value, and of how it was invested. (The Bank of Utica v. The City of Utica, 4 Paige, 399. The People v. The Supervisors of Niagara, 4 Hill, 20. Oswego Starch Factory v. Dolloway, 21 N. Y. Rep. Opinion of Denio, J. 456. The Utica Cotton Manufacturing Company v. The Supervisors of Oneida, 1 Barb. Ch 448.) Manufacturing and turnpike corporations, thus excepted from the general system or principle of taxing corporations, were to be taxed on the cash value of their stock, to be ascertained by the sales of the stock, or in any other manner. (1 R. S. 416, § 7.) The act of 1853, (Laws of 1853, ch. 654,) retained the principle of taxing corporations on their capital, or the amount of their capital paid in, or secured to be paid in, after deducting the amount paid for real estate, then owned by them, &c., as personal property, irrespective of its actual value, or The People v. Commissioners of Taxes and Assessments. of what it was invested in; but by this act they were also to be taxed for all surplus profits or reserved funds, exceeding ten per cent of their capital. The act of 1857, (Laws of 1857, ch. 456,) retained the principle of taxing corporations on their capital, or capital stock, and for surplus profits, exceeding ten per cent of their capital, but as to their capital stock, this act adopted as to all corporations liable to taxation, the principle of the revised statutes in taxing manufacturing and turnpike corporations, that is, of taxing their capital stock at its actual value. The act of 1857 declared that "the capital stock of every company liable to taxation, except such part as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds exceeding ten per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company, which are taxable upon their capital stock under the laws of this. state, shall be assessed at its actual value, and taxed in the same manner, as the other personal and real property of the county." The decision of the case of The People ex rel. The Bank of Commonwealth v. The Commissioners of Assessments &c. in New York, (32 Barb. 509,) depended upon the construction of this act of 1857. In that case the relator was taxed under the act, on a valuation of its capital stock, after making the deductions required by the act. A certain portion of the capital stock was invested in stocks of the United States. The question was whether the portion of the capital stock thus invested was exempt from taxation, and should also have been deducted from the total valuation of the capital stock? It was held at a general term, in the first judicial district, that the assessment was not in form merely but in fact and principle, upon the capital stock, and not upon the property in which the capital was invested, and that the commissioners of assessments &c. were right in The People v. Commissioners of Taxes and Assessments. refusing to deduct the portion of the capital stock vested in United States stock, from their valuation of the capital stock. On appeal to the court of appeals the judgment of the supreme court was affirmed. (See 23 N. Y. Rep. 192.) In deciding the case both at special term and at general term, the supreme court assumed that United States stocks could not be taxed by state authority. The court of appeals decided that United States stocks were taxable under the laws of this state, except when selected out for taxation with an unfriendly discrimination. In appears from the report of the case, that the judgment of the supreme court was affirmed, without passing upon the question as to the construction of the act of 1857, or, indeed, of any of the statutes referred to. It cannot be said that the court of appeals, in affirming the judgment of the supreme court on the ground on which it was affirmed, decided that taxation of capital stock, under the act of 1857, at its actual value, was to be deemed or considered as in substance and fact, taxation on the property such capital stock happened to be invested in at its actual value; in other words, that the capital stock of a corporation, and the property it was or might be vested in was to be considered in construing the act as one and the same thing. I think the court of appeals may be said to have decided this, and no more, to wit: that the proceedings of the commissioners were right, and that the judgment of the supreme court should be affirmed, assuming that taxation on the capital stock at its actual value under the act of 1857. was, or should be considered to be, taxation on the property such stock was or might be invested in. On writs of error to the supreme court of the United States, the decisions of the court of appeals in the case of the Bank of the Commonwealth, and in the case of the Bank of Commerce involving the same questions, and decided by the court of appeals, after the Bank of the Commonwealth case, were reviewed and reversed by the supreme court of the United States, Judge Nelson delivering the opinion of the |