comes for city purposes is imposed by another stat ute.1

148. Special License-When Exclusive of Other Regulations. The acceptance of a special statutory license, although broad and general in its terms, will not relieve the foreign company from such regulation as imposed upon domestic companies of like character. Thus the Supreme Court of Minnesota held that a foreign railroad company did not, by accepting the benefits of a statute authorizing it to build its road into the State, and giving it all the powers, franchises and privileges, and subjecting it to all the liabilities of companies organized under the laws of that State, thereby become strictly a domestic corporation, but merely obtained a permission to construct and operate railways within. the State with the powers and franchises possessed by domestic companies; that, as its powers, franchises and privileges within Minnesota are entirely and exclusively the creation of the laws of that State, although its legal entity, the mere right to exist, is derived from the law of another State, it comes fairly within the language of a statute,3 providing that no corporation shall "be created or organized under the laws of this State" without the payment of certain fees. It is not reasonable to suppose that the legislature intended to exempt corporations primarily created by the laws of another State from the payment of fees exacted from corporations exclusively domestic, although both

1 St. Joseph v. Ernst, 95 Mo. 360, 8 S. W. Rep. 558. See also Leavenworth v. Booth, 15 Kans. 627.

2 Laws Minn. 1877, ch. 14.

3 Laws Minn. 1889, ch. 225.

* State v. Sioux City R. Co., 43 Minn. 17, 44 N. W. Rep. 1032.

classes of companies enjoy under the laws the same powers, franchises and privileges.

The statutory provision admitting the foreign company may be in the nature of a compact or grant of a charter right, in which case it cannot be repealed or affected by subsequent legislation. Thus, a statute of Ohio to confirm the charter of the Covington and Cincinnati Bridge Co., a Kentucky corporation authorized to build a bridge across the Ohio river at Cincinnati, provided that "one-half the capital stock of the company actually paid in shall, as soon as the company commences taking toll, be placed upon the duplicate of the treasurer of Hamilton county, for taxation for all purposes, was held to be a contract, which the company had no right to surrender or abandon in order to bring itself within the general law on the subject of the taxation of real and personal property.'

§ 149. Personalty. Since it is a general rule that laws have no extraterritorial force the power of taxation can only reach that property which lies within the jurisdiction. A tax, therefore, which is imposed upon the property of the foreign company rather than upon the privilege of doing business in the State, cannot reach any property which has not a situs within the jurisdiction. Tangible property within the jurisdiction, when owned by a non-resident whether an individual or corporation, is subject to taxation. But it must appear that it was

Taxation for Revenue-Situs of Property—

Act Ohio, March 9, 1849, 47 O. L. L. 269.

2 Sebastian v. Covington, etc. B. Co.. 21 Ohio St 451.

3 State Tax on Foreign-Held Bonds, 15 Wall. 319; Maltby v. Reading, etc. R. Co., 52 Pa. St. 140; McCulloch v. Maryland, 4 Wheat. 316. • Commonwealth v. Standard Oil Co., 101 Pa. St. 119; State v. Haight, 30 N. J. L. 428; Marye v. Baltimore, etc. R. Co., 127 U. S. 117.

actually within the jurisdiction. For instance it has been held that steam ferry boats plying between the city in which they were registered and had their home port and the shores of another State, were not taxable in that city when owned and run by a corporation created in that other State.' And the mere right of a foreign creditor to receive from his debtor within the State the payment of his demand cannot be subjected to the taxation within the State. It is a right that is personal to the creditor where he resides and the residence or place of business of his debtor is immaterial.'

§ 150. Situs of Real Estate.-Of course the situs of real property is fixed by its very nature, but a question has sometimes arisen as to what property falls within the definition of real property. Thus it has been held that a pipe line, for the conveyance of crude petroleum, which was buried two and a half to three feet beneath the surface, upon the lands of persons from whom the company had acquired by deed the right of way, for the purpose of laying and operating it, is real estate and subject to taxation

as such.'

§ 151. Situs of Corporate Stock. The capital stock of a corporation is susceptible of taxation in two aspects; it may be assessed directly to the company, as capital stock, or the shares may be assessed as the individual property of the shareholders. The capital stock of a foreign company can be assessed for taxation only so far as it is subjected to the local

1 St. Louis v. Ferry Co., 11 Wall. 423. Compare St. Louis v. Ferry Co., 40 Mo. 580.

2 Cooley, Taxation, 21; Barber Asph. P. Co. v. New Orleans, 41 La. An. 1016, 6 South. Rep. 794.

3 Pipe Line Co. v. Berry, 53 N. J. L. 212, 19 Alt. Rep. 665.

jurisdiction by being employed within the State.' But the shares of stock fall within the general rule, that the situs of personal property follows the domicile of the owner, and, although the company is organized and located in another jurisdiction, may be taxed for State and county purposes,' notwithstanding a tax has already been paid thereon in the State where the corporation is located.' And where the company is a domestic corporation, shares of stock, belonging to a non-resident stockholder, follow his domicile and are beyond the local jurisdiction and are not subject to taxation, notwithstanding a tax may be levied on the capital stock as a whole as the property of the company. Sometimes the statute recognizes the inequity of such double taxation and provides for the exemption of shares in a foreign corporation, where its stock is taxed in the State of its corporate domicile."

§ 152. Situs of Rolling Stock of Railroad.-What is the situs of the rolling stock of a railroad corpora

1 People v. American Bell Tel. Co., 117 N. Y.5241, 22 N. E. Rep. 1057. 2 McKeen v. Northampton County, 49 Pa. St. 519; Whitesell v. Northampton County, 49 Pa. St. 526; State v. Branin, 23 N. J. L. 484; State v. Bently, 23 N. J. L. 532; Seward v. Rising Sun, 79 Ind. 351; Great Barrington v. County Comrs., 16 Pick. 572; Newark City Bank v. Assessor, 30 N. J. L, 13.

3 Seward v. Rising Sun, 79 Ind. 351; Dyer v. Osborne, 11 R. I. 321; San Francisco v. Fry, 63 Cal. 470, 1 Am. & Eng. Corp. Cas. 431. In this last case it was held that a constitutional inhibition against double taxation applied only to taxation by the same State or government.

4 North Carolina R. Co. v. Comrs. of Alamance, 91 N. C. 454.

5 Smith v. Town of Exeter, 37 N. H. 556; Foster v. Stevens, 63 Vt. 175, 22 Atl. Rep. 78. See also British Foreign M. Ins. Co., 42, Fed. Rep. 90. But a provision of the Ohio statute (Act Ohio April 5, 1859, § 59), that "no person shall be required to list for taxation any certificate of the capital stock of any company, the capital stock of which is taxed in the name of the company," has been held by the Supreme Court of the United States not to apply to shares in a foreign corporation which pays taxes in Ohio only on the portion of its property which is situated there. Sturges v. Carter, 114 U. S. 511.

tion, and whether it is to be considered real estate, personalty or in the nature of "movable fixtures, are questions that have been much discussed, but a consideration of which is hardly germane to our present purpose.' It is sufficient here to say that there can be no doubt, on principle or authority, of the right of the State to tax the rolling stock of a foreign railroad corporation, which is habitually used within its jurisdiction. It may levy upon such cars and engines a tax which, as the property so used and employed is continuously changing, is to be fixed by an appraisement and valuation of the average amount of property so habitually used.'

§ 153. Assessment-Of Property within the State. -While, as we have seen, the State has no power to levy a tax which falls directly or indirectly upon commerce between the States, yet the mere fact that a foreign company is engaged in such interstate commerce will not affect the legal right of the State to tax that portion of the company's property which has a situs within the State.' Where such property consists of lines of railroads or telegraphs manifest practical difficulties will arise in making a fair assessment. The proper solution of. these difficulties will, of course, depend largely upon the particular facts of each case. In Massachusetts, in the case of a telegraph company, the plan adopted, of estimating the value of the property owned and used by it in that State, by comparing the length of its lines within that State with the length of its

1 See Pacific R. Co. v. Cass County, 53 Mo. 17; Orange, etc. R. Co. v. Alexandria, 17 Gratt. 176.

2 Marye v. Baltimore, etc. R. Co., 127 U. S. 117; Atlantic, etc. R. Co. v. Lesueur, (Ariz. Sept. 18, 1891.) 19 Pac. Rep. 157. See also Baltimore, etc. R. Co. v. Allen, 22 Fed. Rep. 376.

3 Ante, § 40.