The opinion
Clark, C. J., dissenting:
Though much has been said on the argument in regard to this decision affecting the price of State bonds, reference to the complaint and the judgment of the Corporation Commission discloses that the sole purpose of the action, and the only point presented, is as to whether the-stockholders in a bank which holds State bonds are exempt to the amount of these bonds from the payment of taxes on their individual property- — the shares which they buy and sell at will and which is as much their private property (though paying larger profits) as the horses and plows with which the farmer makes his living or the taxed tools which a mechanic uses. When the State issues its bonds, it has never been denied that it can exempt them from taxation by State, county and' municipal authorities. This is on the principle that the issuance of bonds is an agency of government. Besides, the State in effect does collect tax by deducting it in the rate of interest which the bonds bear.
The $55,000 of State bonds in this-case are owned by the Raleigh Savings ;Bank and Trust Company and have not paid one cent of tax to the State, county or city, and no one has ever suggested, or does now suggest, that they should. By reason of such exemption from taxation the bank saves some $1,375 annually, which swells to that extent the fund annually available to be divided among its stockholders. Not content with that, the stockholders in this case are asking for a second exemption, another $1,375 annually, by again deducting the same $55,000, in assessing the value of their private property, the shares of stock, for taxation. The shareholders do not own these bonds. They are owned by the bank itself, and the -bank has been already exempted from taxation on $55,000 on account of the bank’s ownership of them.
Nothing is better settled by the uniform decisions of this Court and of the United States Supreme Court than that the *566 property of a bank and tbe shares 'of the stockholder are entirely separate and distinct, and that the taxation, or exemption, of the one is in nowise a taxation dr exemption of the other. Belo v. Commissioners, 82 N. C., 415 ; Commissioners v. Tobacco Co., 116 N. C., 446 . Indeed, so thoroughly is this principle settled by repeated decisions of the Supreme Court of the United States that in Shelby Co. v. Bank, 161 U. S., 140 , it is declared that no one now disputes that they are separate and distinct classes of property.
In numerous cases in which stockholders in banks, holding United States bonds, have contended that their shares in such bank were exempt from taxation to the extent of such United States bonds and that the value of' their bonds should be deducted in assessing the shares of stock for taxation, that Court has uniformly rejected the contention upon the ground that the bonds were the property of the bank and exempt as such, and that the shares were the property of individuals and not entitled to any exemption in assessing their value on account of the bonds so held by the bank. This is the very contention which the plaintiffs are making in this case and which has been rejected whenever presented by the highest Court in the land.' Van Allen v. Assessors, 3 Wall., 573 ; Bradley v. People, 4 Wall., 459 ; Trust Co. v. Lander, 184 U. S., 111 .
In Commissioners v. Tobacco Co., 116 N. C., 447 , following the decisions of the Supreme Court of the United States and the previous decisions of this Court, it was said: “The capital stock belongs to the corporation. The shares or certificates of stock are entirely a different matter. They belong to the shareholders individually, and under the Constitution must be taxed ad valorem like other property belonging to the holder, independently of the taxation upon the corporation, its franchises, etc.”
If it is now held otherwise as to the plaintiffs, shareholders in a bank, as to our State bonds, in this case reversing all previous decisions, we may not only strike from the tax books $4,000,000 in value of shares of stock in State banks, but we may very probably be exempting all National banks from any taxation whatsoever. The State cannot discriminate against United States bonds.
The act before us exempts three classes of property: 1. The bonds themselves are exempt from all taxation, direct or indirect, general or special. 2. The dividends paid on such bonds are not subject to taxation as an income tax. 3. The surplus of any bank, when consisting of such bonds, shall be exempt from taxation. Not a word is said about exempting shares of stock.
*567 Tbe argument that the shares of stock in the plaintiff’s bank are nontaxable because their value is due in part to the fact that if the bank was wound up and the surplus divided, the proceeds of such nontaxable bonds, derived from the sale thereof, would be divided among the shareholders, is fallacious because it confounds the surplus, owned, held and controlled by the bank, with the shares of stock, which are owned, held and controlled by individuals. The Corporation Commission is required by law to assess the value of shares of stock in all banks for taxation. When this matter was presented to that body, it assessed the value of the plaintiff’s shares of stock at $104.'40 per share, and its decision was in the following words:
“In assessing the shares of stock in this bank the Corporation Commission followed the direction of the statute, as it did not appear such shares had a market value, by adding together the capital stock, surplus and undivided profits and deducting therefrom the amount of real and personal property owned by said institution on which it paid taxes, as follows:,
Capital stock.$15,000.00
Surplus . 60,000.00
Undivided profits . 342.25
making a total of $75,342.25, and deducting therefrom the assessed value of real and personal property, as follows:
Office furniture.$3,000.00
Commercial National Bank stock. 8,700.00
Fidelity Bank stock. 1,000.00
making a total of $12,700, leaving a balance of $62,642.25, which, divided by 600, the number of shares of stock of said bank, ascertained the value of each share to be $104.40, subject to taxation. *
“There was no allegation that there was any insolvent debt due this institution.
“This assessment is not satisfactory to John T. Pullen, who owns fourteen shares of stock in this institution. He contends, and the report on which this assessment is based shows, that the bank has a surplus of $60,000, and has invested $55,000 of this surplus in North Carolina State bonds, issued under chapter 512, Laws 1909, and he claims that this amount should also be deducted from the aggregate value of all the shares of stock. In other words, the contention is that, in addition to the assessed value of real and personal property on which the corporation pays taxes, $55,000 should be deducted, because this much of *568 the surplus of tbe bank was invested in tbe above-named bonds.
“Tbe Corporation Commission failed to see tbe force of tbis contention, as they were not assessing tbe capital stock, or surplus, or undivided profits of tbe bank, but a distinct species of property, to wit, tbe shares of stoclc of tbe bank in the hands of the shareholder. Tbe bank is not required by law to list any of its property, wbetber capital stock, surplus, undivided profits or other property, except so mucb of it as is invested in real estate inside of tbe State.. And tbis bank bas already bad tbe full exemption from taxation of its North Carolina State bonds. Tbe only property listed by tbe bank for taxation was office furniture, $3,000; Commercial National Bank stock, $8,700; and Fidelity Bank stock, $1,000, and these amounts were deducted.
“Tbe General Assembly did not intend that tbe value of tbe property exempt from taxation which is owned by a corporation should be deducted from tbe aggregate value of all tbe shares of stock in said corporation in order to ascertain tbe value of such shares for taxation, as appears from tbe plain directions of tbe statute: ‘The -value of such shares of stock in tbe bands of shareholders shall be tbe market value. If they have no market value, tbe value shall be ascertained by adding together tbe capital, surplus and undivided profits and deducting therefrom,’ not such property as is exempt from taxation, but ‘the amount of real and personal property owned by said institution on which it pays taxes.’ See Machinery Act, Laws 1909, cb. 440, sec. 33. There is no conflict between tbis statute and chapter 512, Laws 1909.
“That tbe shares of stoclc in tbe bands of shareholders are a distinct species of property from that owned by tbe corporation, and.that tbe General Assembly can require it to be taxed at its value, notwithstanding that a part or tbe whole of tbe bank’s funds are invested in property exempt from taxation, bas been held in our courts in Belo v. Commissioners, 82 N. C., 415 ; Commissioners v. Tobacco Co., 116 N. C., 441 , and numerous other cases; and by tbe Supreme Court of tbe United States in case of Cleveland Trust Company v. Lander, 184 U. S., 111 , 46 U. S. R. L. Ed., 456. Notwithstanding tbe number of words used to exempt tbe same, namely, ‘The bonds and coupons shall be exempt from all State, county and municipal taxation or assessment, direct or indirect, general or special, wbetber imposed for general revenue or otherwise, and tbe interest paid thereon shall not be subject to taxation as income, nor shall State bonds or coupons be subject to taxation when constituting a part of tbe surplus of any bank, trust company or other cor *569 poration,’ we are of tbe opinion, tbat tbe same cannot be construed so as to authorize tbe deduction contended for by tbe plaintiff, in view of tbe authorities cited above.
“Fkanklin McNeill,
" Chairman.”
Tbe statute requires tbat taxation on tbe shares of banlc stoclc in tbe bands of individual owners shall be laid upon tbe value of such stock, which valuation shall be reached: (1) Taking tbe market value of tbe stock; (2) Deducting tbe value of tbe real and personal property of tbe bank, which has been already taxed; (3) By dividing tbe remainder thus left by tbe number of shares. By these process.es tbe Corporation Commission found tbat tbe balance was $62,672 and tbat tbe shares of stock are worth $104.40 per share. Tbe plaintiffs are seeking, in this case, to deduct $55,000 (on which its owner, tbe bank, has already bad exemption), leaving tbe taxation value of tbe total shares in this bank for taxation $7,642, being a little more than $12 a share.
It is a matter of universal knowledge tbat within tbe last three months a large part of this stock — in fact, more than five-sixths thereof — has been purchased by another bank at $175 per share, or seven times its par value ($25). On tbe shares for which tbe purchasers paid $175 it is now asked tbat assessment for taxation against said purchasers shall be laid at a little more than $12 per share.
The statute law of the State, Laws 1909, oh. 440, sec. 33 (p. 705), provides: “The residents of this State who are shareholders in any bank, banking association or savings institution (whether State or National) shall list their respective shares in the county, city or town, precinct or village where they reside, for the purpose of county, school or municipal taxation. * * * All shares, whether owned by residents or nonresidents, shall be listed at the time for listing taxes. The county commissioners, list takers and other county and municipal officers shall have the sa'me power to enforce the listing of shares of stock in any such bank, banking association or savings institution, whether held by residents or nonresidents, as they hqve for enforcing the listing of their personal property. The taxation of shares of. any such bank, banking association or corporation, or savings institution, shall not be at a greater rate than is assessed upon any other moneyed capital in the hands of individual citizens, whether such taxation is for State, county, school or municipal purposes.” And the next section provides that in assessing the value of the shares of stock the highest price of sales of stock *570 during the year and the average price of sales of stock during the year shall be taken into consideration. These provisions show that the lawmaking powers are at one with the decisions of the courts in considering that the shares of stock are entirely separate and distinct property from the propierty held by the bank itself.
The Constitution of the State, Art. Y, sec. 3, provides: “Taxation shall he hy uniform rule ad valorem. Laws shall be passed taxing by uniform rule all moneys, credits, investments in bonds and personal property according to its true value in money.” And then follows section 5 of the same article, which authorizes the General Assembly to exempt cemeteries and property held by schools, churches, charities, and the like, and also personal property, not to exceed $300 to each taxpayer.
The statute law of the State, Laws 1909, ch. 440, sec. 63, in accordance with the provisions of the Constitution, provides (p. 725) : “The following personal property and no other shall be exempt from taxation, State and local.” Then follow the exemptions of property, school and charity property and an exemption (p. 726) “not exceeding $25” of wearing apparel, etc., to each taxpayer. And then, to prevent any possible misunderstanding, Laws 1909, ch. 438, sec. 5, repeals all other exemptions of any other kind than that above enumerated which have heretofore been granted. This legislation shows conclusively that there was no intention on the part of the Legislature to extend an exemption to the shares of bank stock held by the plaintiffs. Such property is proverbially the best in the State, and the shareholders of a bank whose stock, by good management and exemption from taxation, has increased in value to “7 for 1,” certainly do not own an interest in “an infant industry” requiring a subsidy from the State in the shape of exemption from taxation. Owing to increased demands for public pmrposes, the Legislature has not felt that the State was able to grant to less prosperous taxpayers the exemption of $300 per head, which it is authorized to do by the Constitution, but restricts the exemption to $25. It is not reasonable to assume that it intended to exempt many thousands of dollars from taxation in the shape of shares in the banks.
As the statute, Laws 1909, ch. 440, sec. 14% (p. 696), defines the market value as the amount for which property is sold for cash in the ordinary course of dealing, it would seem that the error in the action of the Corporation Commission is in not assessing this property at $175 instead of $104.40, and the shareholders certainly cannot complain, as they have thus, already, received an exemption of $70 per share deducted from the “true value,” or a 40 per cent exemption.
*571 It was further argued by the plaintiff that, inasmuch as the statute provided that in assessing the value of the shares in the hands of the shareholders, the Corporation Commission should deduct “the real and personal property on which the bank has paid taxes,” that, therefore, the Corporation Commission should also deduct the property on which the bank has not paid taxes. It is impossible to adopt this as logic. If the Legislature had meant to do so, it would certainly have said it, and in a simpler way, by saying that “all shares of bank stock shall be exempt from taxation,” since that is what it would amount to.
Rut the Corporation Commission, in this case, have deducted the value of such real and personal property “on which the bank has paid taxes,” to wit, $12,700, before arriving at the amount at which the plaintiffs’ shares were assessed. Though the point is not presented, it is well to call attention, here and now, to the fact that unless we deny, what all the courts have held, that the shares of stock in the hands of individuals are separate and distinct from the property of the corporation, the exemption in favor of the shareholders of the value of the property on which the bank has paid taxes is in violation of the provision of the Constitution which forbids exemption, and the State has lost many thousands of dollars in taxation annually by this point not having been considered. It is very clear that one man cannot have an exemption on his property because another man has paid taxes on his own property.
It was contended in the argument, by‘the plaintiffs’ counsel, that the effect of a decision by this Court that the stock in the hands of shareholders would be exempted from taxation to the amount of the State bonds owned by the bank, would create a demand which would take up possibly the whole of the issue of $4,000,000 of bonds. It is no part of the province of a court of justice to render decisions because of the effect, fine way or another, on the financial market in which bonds and stocks are traded for. The questions before us are only, whether the Legislature attempted, and had the power, to exempt the shares of stock in the hands of the shareholders when it provided that “the bonds and coupons shall be exempt from all State, county and municipal taxation or assessment, direct-or indirect, general or special, whether imposed for general revenue or otherwise, and the interest paid thereon shall not be subject to taxation as for income, nor shall bonds and coupons be subject to taxation when constituting a part of the surplus of any bank, trust company or other corporation.” These bonds have not been subject to any tax, direct or indirect, general or special, either as surplus or in any other way. The exemption is to the bonds *572 and is given to tbe owner, whether an individual or a bank, and when constituting a part of the surplus of the latter.
But it is contended that the word “indirect” should be construed to extend the exemption, not only to the bank which has already had the benefit of exemption, but further to the shareholders. There is no such intimation in the statute. The. expression “indirect taxes” is well known, and in this connection it can only mean taxes “direct or indirect, general or special,” on the bonds themselves in the hands of the owner, to wit, the bank. To give it the construction contended for would give the word “indirect” a construction which has never been placed upon it by any court. A tax on the shares in the hands of the owner cannot possibly be a tax on the property of- the bank.
If the plaintiffs’ contention is correct, the Legislature has passed an act which has this singular effect: If any individual or corporation other than a bank owns one of these bonds it is exempt from all taxes in the owner's hands — a single exemption; but if a bank owns it, as part of its surplus, the shareholders get an exemption to the like amount on their individual property, their, shares of stock — a double exemption from taxation.
The owner of more than five-sixths of the shares of the Raleigh Savings Bank and Trust Company is another bank, and the only effect of the decision, if rendered in favor of the exemption, would be to increase vastly the value of the shares of stock in the Raleigh Savings Bank and Trust Company, and also the value of the shares of stock in the bank which now holds five-sixths of the shares of the former bank.
The complaint frankly avers the true object of this suit; which is to obtain a coveted and most valuable exemption from taxation of the shares in the hands of the shareholders. It does hot aver that the plaintiffs are seeking to benefit the State 'by raising the value of the State bonds, nor that they are here to advance the interests of the State. They are seeking an exemption of their shares because of State bonds which the bank has already bought, and it is not reasonable to suppose that they should wish to advance the value of State bonds which either bank may hereafter desire to purchase. Counsel for the plaintiffs, however, have contended that such would be the effect. If it is proper for the Court to consider such matter, it may be well to insert here, from the defendant’s brief, the answer which they make to the suggestion:
“The capital stock of the plaintiff’s bank is $15,000. Its surplus is $60,000. It holds $55,000 of these nontaxable bonds as a part of its surplus. The 'life of these nontaxable bonds-is *573 forty years. Let ns see wbat would be tbe result to tbe State if tbe law requires tbe taxing power to deduct these $55,000 of bonds from tbe actual value of tbe capital stock of tbis bank in order finally to ascertain tbe value of tbe shares of stock therein:
“Tbe total tax rate in Raleigh is about $2.50. Two and one-half per cent of $55,000 equals $1,375. Forty times $1,375, that is to say, tbe loss of taxes each year, multiplied by tbe number of years that tbe bonds run, equals $55,000. So tbe State in forty years would lose tbe principal of tbe bonds; and for wbat ? — to gain one point by way of premium wKen first sold (record, p. 2). A pretty costly whistle, to be sure! It will be noted that tbe 'controversy without action’ states that by exempting tbe shares of stock from taxation tbe premium upon tbe bonds will be increased one point. . Taking, therefore, these $55,000 of bonds as a basis, tbe State would receive by way of extra premium, if sold with tbe exemptions contended for, 1 per cent, or $550. But at tbe end of forty years tbe State, etc., would lose, as above, $55,000, and under tbe contention of exemption, if allowed because tbe tax is not on tbe shares but on tbe corporation, all National banks would go scot free of all taxes. And yet we are authorized to state from tbe Corporation Commission that it is not tbe financial view of tbis matter which they would call to tbe attention of tbe Court, but tbe legal phases of tbe same. We simply contend that a statute which results in such disastrous consequences financially to tbe State should not be, by tbe Court, interpreted as contended for by tbe appellant, unless tbe meaning of tbe statute is clear beyond doubt, without inference and without presumption. And we maintain that tbe plaintiffs have not shown and cannot show that tbe intention of tbe Legislature is clear beyond all doubt in respect to tbis matter.”
In reply to that, tbe plaintiff’s counsel subsequently contended that only a very small part of tbe bonds would be bought by tbe banks in tbis State. If so, such a very small demand could not materially affect tbe price of tbe bonds. Indeed, tbe only evidence adduced before tbe Corporation Commission, that tbe exemption of tbe shares of stock would affect tbe price of these bonds, is that of a witness who thought, perhaps., tbe price would be raised % of 1 per cent. That was only bis opinion, and tbe contrary opinion that tbe price of tbe bonds would not be affected at all is probably entertained by a large majority of tbe bank officials of tbis State.
Exemption of any property from its fair and just share of public burdens increases tbe taxation paid by all other property. *574 Sueb exemption has, therefore, been expressly prohibited by the State Constitution. Indeed, it may with truth be said that no legislation can be more unjust or more odious. For many years the State contended for the annulment of an exemption from taxation which had been granted to two great railroads in the State. Such grant had been made at a time when railroads were an “infant industry,” and the State thought their construction should be encouraged by contribution from the other taxpayers by exempting those railroads from taxation. Besides, at that time there was no< provision in the Constitution, as now, forbidding the exemption of any iiroperty. Yet the State strongly contended for years that the exemption was unjust and illegal, and finally the repealing act was held valid by this Court in R. R. v. Allsbrook, 110 N. C., 137 , which opinion was affirmed upon a writ of error by the United States Supreme Court. In that opinion by this Court, 110 N. C., p. 147, it was said, quoting from Chase, C. J., and Miller and Field, JJ., in Washington v. Rouse, 8 Wall., 441 : “We do not believe that any legislative body, sitting under a State Constitution of the usual character, has a right to sell, to give, or to- bargain away forever the taxing power of the State. * * * If the Legislature can exempt, in perpetuity, one piece of land, it can exempt all land. It can as well exempt persons as corporations. They go on to say that rich men and rich corporations with the appliances they are known to use, may obtain perpetual exemption ‘from taxation and east the burden of government and the payment of debts on those who are too poor or too honest to buy such immunity’; and they say further, 'with as full respect for the authority of former decisions as belongs, from teaching and habit, to judges trained in the common-law system of jurisprudence, we think that there may be questions touching the powers of legislative bodies which can never be finally closed by the decisions of the courts, and the one we have here considered is of this character.’ We are strengthened in this view of the subject by the fact that a series of dissents from this doctrine by some of our predecessors shows that it has never received the full assent of this Court, and referring to those dissents for more elaborate defense of our views, we content ourselves with thus renewing the protest against a doctrine which we think must be finally abandoned.”
In the above case we were holding invalid an exemption from taxation granted under a Constitution which did not forbid such exemption, and purely on the ground that the Legislature could not grant an irrevocable exemption. In the present case the exemption is not given by any words which refer to shares of *575 stock or to sbareb.old.ers, and is a most far-fetcbed deduction from tbe use of tbe word “indirect,” and if it can be construed to convey tbe meaning tbe plaintiffs contend, then tbe exemption is in direct violation of tbe Constitution of tbe State.
It bas been uniformly beld by tbe United States Supreme Court, by courts of other States, and by tbis Court, that in respect to corporations “tbe Legislature can levy any two or more of tbe following taxes, simultaneously: (1) on tbe franchise (including dividends); (2) on tbe capital stock; (3) on tbe tangible property of the corporation; and (4) on tbe shares in tbe bands of tbe shareholders. The tax on the two subjects last named is imperative Commissioners v. Tobacco Co., 116 N. C., 441 , and cases there cited. That action was brought by an eminent lawyer, now a member of tbis Court, whose contentions to tbe above effect were sustained. Notwithstanding that it was there beld that a corporation must pay tax on all its property, like every one’ else, tbe counsel for defendant says truly that “not a bank in North Carolina to-day pays one cent of tax to the State, county or town, for franchise tax, income tax, nor any tax whatever upon its capital stock (which taxes are optional luith the Legislature), nor upon any of its property (which last'tax is imperative by the Constiiution), save the tax on its banking house and furniture and the like” (in tbis case $12,700), and even that tax is recouped by unconstitutionally deducting the amount of the property thus taxed from the assessment of the shares against the shareholders. Tbis is in direct violation of tbe Constitution. If tbe farmers, and other citizens and all other corporations, were treated to a like total exemption from all taxation, they, too, would show a great degree of prosperity. Neither railroads, cotton mills nor any corporation, other than banks, are thus practically exempted from all taxation, nor are shareholders in any corporations other than banks authorized to deduct in estimating the value of their shares for taxation tbe amount of property on which tbe corporation bas paid any tax.
To sum up: “Exemptions from taxation are regarded as .in derogation of tbe sovereign and of tbe common right, and, therefore, not to be extended beyond tbe exact and express requirements of tbe language used, construed strictissimi juris.” R. R. v. Thomas, 132 U. S., 174 . Here there are no words conferring an exemption upon stockholders in tbe banks, and it requires an ingenious and most unusual interpretation of tbe words “indirect tax” to confer an exemption upon tbe plaintiffs.
“Where a doubt arises as to tbe existence of tbe exemption, it is to be decided in favor of the State.” Bank v. Tennessee, *576 104 U. S., 495 . Here it requires an ingenious construction, an unusual one, of a single word to raise a doubt in favor of tbe exemption.
“Tbe exemption must be clearly stated and will not be inferred from facts wbicb do not irresistibly point to tbe existence of a contract.” Judson on Taxation, sec. 86. There can be no lawful contract of .exemption made, even if tbe Legislature bad so intended, because tbeir action would be in violation of tbe Constitution.
“No claim of exemption from taxation can be sustained unless established beyond all doubt.” R. R. v. Supervisors, 93 U. S., 595 ; R. R. v. Missouri, 120 U. S., 569 . In this case, of tbe nine judicial officers to whom, under tbe laws of this State, .this matter has been submitted, only three, a, bare majority of this Court, considered that such exemption has been granted. Tbe three Corporation Commissioners, tbe judge of tbe Superior Court, and two judges of this Court, have a contrary opinion. Surely, tbe point is not “established beyond all doubt” — the test which tbe Supreme Court of tbe United States applies.
Such exemptions must be expressed in clear and unambiguous terms. R. R. v. Allsbrook, 110 N. C., 158 . Can any one claim that such is tbe case here when neither “shares” nor “shareholders” nor exemption to them are named in tbe statute, wbicb only refers to exemption of tbe bonds when owned as tbe surplus of tbe bank ?
The buyers of tbe bonds, upon tbe bolding of tbe Court that tbe shareholders are exempt on tbeir stock, may claim that tbe decision of this Court is a contract, an exemption of bank shares annexed to tbe exemption of $4,000,000 of bonds, being a double exemption, for forty years, and that such exemption is irrevocable, even though the Legislature should strike out tbe act, or tbe Court should hereafter express a contrary opinion, either in another suit or by a rehearing in this case and change of opinion by one member of tbe Court, as now constituted, or by a change in its personnel. Tbe dissenting opinions will not be without value, for they put tbe bond buyers upon notice that if tbe act, as thus construed, is unconstitutional, no valid contract of exemption of shares has been granted. There is nothing in the judgment of tbe Corporation Commission of wbicb tbe plaintiffs have a right to complain.