entire lines, was held to be a fair assessment in that instance, although it might not be so considered under different circumstances. Said MR. JUSTICE MILLER, in delivering the opinion of the court: "It is very clear to us, when we consider the limited territorial extent of Massachusetts, and the proportion of the length of the lines of this company in that State to its business done therein, with its great population and business activity, that the rule adopted to ascertain the amount of the value of the capital engaged in that business within its boundaries, on which the tax should be assessed, is not unfavorable to the corporation, and that the details of the method by which this was determined have not exceeded the fair range of legislative discretion. We do not think that it follows necessarily, or as a fair argument from the facts stated in the case, that there was injustice in the assessment for taxation."" Where the special charter of a railroad company defines the basis on which it is to be taxed its subsequent consolidation with other roads so as to form a continuous line partly within and partly without the State, will not so far change its identity as to subject it to a different rate of taxation under a general railroad law.'

§ 154. Same-Assessment Upon "Net Value" of Insurance Policies.-An assessment of an excise tax, at one-half of one percentum per annum, upon the "net value" of policies of insurance issued, or assumed within the State, was held to be a legitimate exercise of the power granted by the Massachusetts constitution "to impose and levy reasonable duties and

1 Western Union Tel. Co. v. Massachusetts, 125 U. S. 530, 553. 2 State Treasurer v. State Auditor, 46 Mich. 224, 13 Am. & Eng. Ry. Cas. 296.

excises upon any produce, goods, wares, merchandise and commodities whatsoever, brought into, produced, manufactured or being within the State, on the ground that such tax was "reasonable," and that insurance policies or risks were "commodities," within the statute constitution."

§ 155. Same-When Fixed by the Admitting Statute.-A statute of Ohio "to confirm the charter of the Covington and Ohio Bridge Company," a Kentucky corporation, and authorize the construction of a bridge over the Ohio river, which provided that half the capital stock paid should be placed upon the duplicate for taxation,' was held to refer to and include not only the stock then authorized by its charter, but also all stock issued under subsequent amendments of its charter and actually paid in, including as well preferred stock as common stock.'

§ 156. Same-In the Absence of Specific Legislation. Where the constitutional power of the State to tax foreign corporations had not been specifically exercised, the question arose in Massachusetts as to the taxability of the property of such company within the State, under the general taxation laws. A Rhode Island company was authorized by statute to hold real estate in a town of Massachusetts;" that is, it was admitted on that basis. As to the taxation of this, there was no question. But it was contended on the part of the foreign company that by its statutory admission it had so far become a domestic company that it was entitled to have its

1 Const. Mass., ch. 1, art. 4.

2 Connecticut Ins. Co. v. Commonwealth, 133 Mass. 161. See also State v. Reinmund, 45 Ohio St. 214, 13 N. E. Rep. 30.

3 47 Ohio L. L. 269.

• Covington, etc. B. Co. v. Mayer, 31 Ohio St. 317. St. Mass. 1841, ch. 24.

personalty assessed in the same way as the personalty of companies organized under the laws of Massachusetts,' that is, to have the machinery only assessed to the company, the other personalty being supposed to be reached and taxed in the assessment of the shares of the individual stockholders. It was held, however, that the company was still a foreign company, and not within the statute mentioned, and its personalty subject to assessment as the personalty of any other non-resident.2

§ 157. Remedies for Non-payment-Exclusion.— As we have seen, exclusion from the State is the remedy usually provided by law to enforce the payment of taxes imposed upon foreign corporations.* The form of the proceeding hardly seems material and there is no reason why the legislature may not provide a remedy by injunction against the transaction, by the company, of business within the State, although quo warranto would seem to be the more appropriate proceeding. But it is plainly manifest that where the foreign company is engaged in interstate commerce, the power of exclusion from the jurisdiction, for non-payment of even those taxes which may be levied upon such companies no longer rests with the State. Thus, the Supreme Court of the United States held, in Western Union Telegraph Co. v. Massachusetts, that, although the tax there levied upon the property of the company within the State was a valid tax, the provision of the statute authorizing an injunction restraining the corpora

1 Rev. St., R. I. ch 7, § 10, cl. 2.

2 Blackstone Mfg. Co. v. Blackstone, 13 Gray, 488. See also Boston Loan Co. v. Boston, 137 Mass. 332.

3 Ante, § 143.

4 125 U. S. 530, 554.

tion from prosecuting its business within the State, until the taxes are paid,' was void as far as it assumed to confer power upon the court to restrain a telegraph company, which had accepted the provisions of the Federal statute,' from operating its lines over the military and post-roads of the United States.

§ 158. Same-Indictment.—In Virginia, the remedy of exclusion takes rather a pronounced form. There, keeping an office, or transacting business as an agent or subagent of any foreign insurance company without a license, is an offense punishable by fine. An indictment thereunder for doing business as the agent of the Protection Insurance Company of Hartford, Connecticut, which omitted to state that the company was an insurance company, was held to be cured by verdict.*

§ 159. Collection from Local Agent.-In view of the fact that the foreign corporation is present in the State only by its agent, it is entirely competent for the legislature in levying a tax upon the gross receipts of the business conducted within the State to require that it be paid by the agent, and provide that upon default, payment may be enforced by action, though in many, if not in most instances, the action is brought directly against the company."

5

§ 160.

Constitutional Questions Citizenship “Equal Protection of the Laws," etc.-In discussing,

1 Pub. St. Mass., ch. 13, § 54.

2 Rev. St. U. S., § 5263.

3 Code Va., ch. 38, § 25, p. 210.

4 Slaughter v. Com., 13 Gratt. 767.

5 State v. Sloss, 83 Ala. 93, 3 South. Rep. 745.

See, for instance, Chicago v. Phoenix Ins. Co., 126 Ill. 276, 18 N. E. Rep. 668.

in another part of this chapter, the limitations imposed by the Federal constitution upon the power of the State to regulate foreign corporations, we have seen that laws imposing taxes upon them, as such, so as to discriminate in favor of domestic companies, are not invalid as violating the constitutional provision that "citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States;"" nor as withholding from them equal "privileges and immunities" of citizens, since corporations are in no proper sense of the word citizens; and further that such taxation cannot be regarded as infringing the provision of the fourteenth amendment that "no State shall deny to any person within its jurisdiction the equal protection of the laws," for the reason that such artificial associations are not "persons" within the language used."

§ 161.

Same-Interstate Commerce.-We have seen further, too, that a statute imposing a tax upon foreign corporations is invalid as being an interference with the commercial power of the general government, only when the company is engaged in interstate commerce and the tax falls on that business in some form, whether as duties on transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on; that is, only when such taxation is a burden on such business

1 Ante, § 32.

2 Ante, § 33.

3 Ducat v. Chicago, 48 Ill. 172, 95 Am. Dec. 529, affirmed 10 Wall. 410; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, 573.

4 Ante, § 34.

5 Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 188.