against the stockholders might, under the decisions, include elements of value not belonging to the bank as assets and the "total valuation" of the shares would almost certainly be different from the total assets of the bank.

We proceed to consider the arguments urged for a different view. Section 17 of the act of 1903 requires the officers of the bank to give the assessor a statement of the amount of the assets, capital stock and surplus. This is thought to indicate that the legislature meant to limit the assessor to these three elements as the basis of an ascertainment of the true value. Such is not the necessary nor even the probable inference. It is probable that the intention was to compel the bank officers to furnish information which was essential in order to reach the true value with accuracy. True value is not always to be ascertained by the simple method of reference to selling price in the market. Special circumstances may cause the market value to be either higher or lower than the true value. Stock may sell beyond its true value because of a temporary artificial demand due to a corner in the stock; or, in spite of a large defalcation, not yet known to the public. A currency panic, a false rumor, or ignorance of the existence of assets not shown by published statements may cause the stock to sell below its true value. The truth or falsity of some of these circumstances, which unduly exalt or depress the market price, may be tested by a truthful statement of assets, capital stock and surplus, It was therefore quite proper for the legislature to require such information to be furnished to the assessor. By section 17 of the act of 1866, the assessor, in addition to the statement of the bank officers, was authorized to take such other means as might be in his power to ascertain the true amount for which the stockholders should be taxed. This provision is omitted from the act of 1903, and we are asked to infer from this omission that the legislature meant to confine the assessor to the statement of assets, capital and surplus furnished by the bank officers. We are unable to draw this inference in the face of section 14 of the act of 1903, which empowers the assessor to examine under oath any person or officer of a corporation touching the taxable property of

himself or others. The revisers seem to have thought, as we think, that it was unnecessary to repeat this power in section 17. The argument proves too much; for if the assessor can make no inquiry outside the statement of the bank officers, the power to fix the valuation is put in the hands of private persons who may be interested in undervaluing the assets of the bank for the very purpose of depressing the taxable value of the stock. This is contrary to the whole spirit of the Tax act which puts both the power and the responsibility of fixing proper valuations in the hands of the public officials.

The language of section 17 of the act of 1903, repeated in the act of 1905 (Pamph. L., p. 457), "total valuation of the shares of stock assessed against the stockholders," makes it necessary to ascertain the true value of each share, and multiply this by the number of shares to ascertain the total valuation from which the deductions are to be made. It is argued that the total value cannot be the market value for the reason that there is no such thing as a market value for the whole of the capital stock of a bank. We are not prepared to concede that there never is a market value for the whole stock, but no doubt the case would be exceptional. The true answer to this argument is that the legislature is contemplating what normally happens. Under the usual circumstances, there is a market value for all the stock that offers. If the argument is valid, the best of investment stocks have no market value since it would be impossible to convert them all into cash at once; and even the total of the deposits in the strongest banks is valueless since the effort to draw all at once would surely fail. What was in the mind of the legislature was the situation that exists in the ordinary ebb and flow of a normal market.

We think, therefore, that upon a proper construction of the Tax act, the true value at which shares of stock in a national bank are required to be assessed is, under ordinary and normal conditions, their exchange value in the market, and not their book or liquidation value; from the total valuation of all the shares there must be made such deductions as the statute permits. We have reached this conclusion by the considerations above presented independent of authority. It is gratifying to

find that we are supported by the adjudged cases. In Lippincott v. Lippincott, 46 Vroom 795, the Chief Justice, speaking for the Court of Errors and Appeals, said (at p. 798), referring to the decision in Mechanics National Bank v. Baker: "Upon this point we held that trust companies were taxable upon the market value, not the par value, of their stock, and that therefore the assessment and imposition upon them was the exact equivalent of that upon national bank stock, and, so, that there was no discrimination against the latter made by our tax laws." The construction has not only the approval of this latest case, but has the merit of age, for in State v. Tunis, 3 Zab. 546, it was held that the actual value of bank stock was its fair market value. The same view is taken in Massachusetts National Bank of Commerce v. New Bedford, 155 Mass. 313. In this case, the market value as a going concern was, owing to a loss of public confidence, less than the book or liquidation value. The New York courts have sustained the same view. Tradesmen's National Bank v. Commissioners, 69 N. Y. 91. Under the California statute, shares of national banks are to be valued at their "full cash value," which is defined as the amount at which they "would be taken for a just debt due from a solvent debtor." The Supreme Court of the United States said: "These words are but synonymous with the requirement that in assessing shares of stock their market value must be the criterion. This is the case, for, eliminating exceptional and extraordinary conditions, giving an abnormal value for the moment to stock, it is apparent that the general market value of stock is its true cash and selling value." The court added that this value "embraced not only the book value of all the assets of the corporation, but the good will, the dividend earning power, the ability with which the corporate affairs were managed, the confidence reposed in the capacity and permanency of tenure of the officers, and all those other indirect and intangible increments of value which enter into the estimate of the worth of stock and help to fix the market value or selling price of the shares." San Francisco National Bank v. Dodge, 197

U. S. 70, 79, 80. With this quotation we may well leave this branch of the case.

Our statute, in accordance with the act of congress, enacts that the assessment and taxation of shares of stock in national banks shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individuals in this state. Pamph. L. 1905, p. 457. It is therefore necessary to determine whether section 17 of the Tax act of 1903, as we construe it, is in accord with this requirement. The only ground on which it is challenged is that trust companies are assessed at a lower rate. The provision as to trust companies is found in section 18 of the act, which enacts that every trust company shall be assessed in the taxing district where its office is situated upon the full amount of its capital stock paid in and accumulated surplus. We must take it for granted, since the decision in Mechanics National Bank v. Baker, 36 Vroom 549, that trust companies do a business which is in competition with the business of national banks. The latter therefore cannot be assessed at a greater rate than the former. It is not essential that the same method of taxation should be adopted, if, in fact, the rate that falls upon trust companies is equal to that imposed upon shares in national banks. Mercantile National Bank v. Mayor of New York, 121 U. S. 138. In that case a local tax was imposed upon trust companies assessed on the actual value of their capital stock, and a state franchise tax was imposed based upon their income. The method differed from that permitted in the case of national banks where the assessment was upon the shares of stock held by individual stockholders; but the Supreme Court held that taxation in this mode was at least equal to that upon the shares of the individual stockholders, and that there was, therefore, no illegal discrimination against national banks. Under our Tax act of 1903, the method of assessing trust companies and national banks is different, but the question to be decided is whether this difference is such as to amount to a discrimination against the national banks. We think it must be conceded that there would be such discrimination if trust companies were assessable only upon the

book or liquidation value, since in that event the shares of national banks would be taxed upon a value due to elements which would not be taxable in the case of trust companies. It is clear from the language we have already cited from section 17 that the legislature intended to tax the total valuation of shares of stock of national banks in the hands of stockholders, less, of course, such deductions as are permissible from that valuation. In view of the clear and precise language of section 17, we cannot believe that the legislature meant to adopt in section 18 a rule for trust companies the necessary effect of which would be, under the rule prescribed by the act of congress, to abrogate the provision of section 17 for the taxation of national banks and to compel their taxation upon a different basis than that indicated by the words "total valuation of the shares of stock assessed against the stockholders." ought not to adopt a construction which would produce such a conflict unless we are compelled to do so, especially since that construction would result in attributing a different meaning to the words "true value" when applied to this kind of personal property from that which the statute gives to them as applied to real estate. We are not compelled to adopt such a construction. Prior to the passage of the act of 1903, this court had been called upon to pass upon the language contained in the Trust Company act of 1899. Pamph. L., p. 450. $29. This provided that every trust company should be taxed in the taxing district where its office is situated upon the amount of its capital stock issued and outstanding, and allowed a deduction for the amount of assessment for the real estate. It was contended, under this act, that the assessment was to be only upon the par value of the stock, regardless of the amount of property possessed by the trust company or its accumulated surplus. We held, in Fidelity Trust Co. v. Vogt, 37 Vroom 86, that different methods of ascertaining the true value might be prescribed for different classes of property, provided the public burden was imposed substantially and proximately according to true value, but that an arbitrary mode of assessment which subjected to taxation a part only of the true value of the property classified, infringed the