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constitutional provision and could not be sustained. In applying these general principles to the particular case, we held that a construction of the act that made trust companies assessable only upon the par value of their stock would render it unconstitutional; that such a construction was not necessary since the act could be read to mean that the entire amount of the shares of stock signifying the whole number of shares should be subjected to taxation and at true value. This case was decided February 25th, 1901, and on March 4th, 1901, the Court of Errors and Appeals, in deciding Mechanics National Bank v. Baker, 36 Id. 550, rested their affirmance of the judgment in that case upon the construction of the Trust Company act which had been adopted by the Supreme Court in Fidelity Trust Company v. Vogt, and said that the opinion of Mr. Justice Van Syckel supported the conclusion by satisfactory reasoning. The difficulty which confronts us is the same difficulty which confronted this court and the Court of Errors and Appeals in the Fidelity Trust Company case and the Mechanics National Bank case. They solved it by adopting such a construction of the Trust Company act as made it harmonize with the method of taxing shares of national bank stock, and they did this, although at that time the language of the act as to the taxation of shares of national banks was far less clear and precise than it now is. Such was the situation when the legislature revised our Tax act in 1903. In revising this portion the language was changed, and the assessment upon trust companies was required to be upon the full amount of the capital stock paid in and accumulated surplus. Nothing was said about the method of valuation. All that the statute directed was an assessment upon the full amount of capital stock and surplus. The language is similar to that contained in the statute under which non-resident holders of national bank stock had been taxed. They were required to be assessed to the amount of such shares, and the Court of Errors and Appeals had just held that this language meant the "real" value, which was treated as synonymous with market value in Lippincott v. Lippincott. The legislature of 1903 must have known of that construction, and must

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be held to have adopted it. To hold otherwise would be to hold that in a revision of the Tax laws the legislature did more than revise, and, in fact, altered the existing law, and, moreover, altered it in such a way as to make section 17 unenforceable in accordance with its express terms by reason of the limitation contained in the act of congress. That the Tax act of 1903 was a mere revision has been settled by the Court of Errors and Appeals in the recent case of Standard Fire Insurance Co. ads. Trenton, 48 Id. 757 (at p. 760). It is there held that a change of language in that act did not suffice to change the existing law, and the same rule is applicable to the present case which arises under a different section of the same act. The language of section 18 of the Tax act requires that the capital stock paid in and accumulated surplus of trust companies shall be taxed. A distinction had been made in our cases between the capital stock of a banking corporation and the moneyed capital of the bank. North Ward National Bank v. Newark, 10 Id. 380. Mr. Justice Depue, speaking for this court, said that the moneyed capital of a bank was the property of the corporation, and in whatever form it was invested, was owned by the bank as a corporate entity and not by the stockholders. "The stock or shares," he added, "represent the interest of the shareholders." The distinction between the moneyed capital of a bank and the capital stock, which represents the interests of the shareholders. is far more important than a mere verbal distinction, for upon it rests the right, thoroughly recognized and sustained by the cases already cited, to value bank shares at a sum which includes elements of value that would not be taxable to the bank as a corporate entity. This distinction must be presumed to have been in the mind of the legislature in 1903, and with this knowledge they enacted that the tax be imposed "upon capital stock paid in," not upon the capital of the bank. They used words that had already been decided to designate the interest of the shareholders. It was "stock" that was to be assessed, and the assessment of the full amount, under the rule of Fidelity Trust Company v. Vogt, would be an exact equivalent of the total value of the shares of stock assessed

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against the stockholders of national banks under the next preceding section of the act; and by this construction the two sections would be brought into harmony. The construction contended for by the banks in the present case had, prior to 1903, been pronounced by this court, with the approval of the Court of Errors and Appeals, to be an unconstitutional method, and unless we are prepared to say that the legislature in 1903 adopted a method which the courts in 1901 had pronounced unconstitutional, we must say that they used the language of section 18 in the sense which had been attributed to similar language in the act of 1899 by the courts.

We do not overlook the decision of this court in Fidelity Trust Co. v. Board of Equalization of Taxes, 48 Vroom 128. There is language in that opinion which conflicts with the view we have expressed, but an examination of the case shows that the question was not directly involved or presented. The tax imposed upon the trust company in that case had been based upon its capital and accumulated surplus, and it is noteworthy that the report shows, at the bottom of page 128, that the assessment was upon the capital and accumulated surplus and not upon capital stock and accumulated surplus as the act required. The tax thus assessed had been paid, and no question arose with reference thereto. The city thereupon undertook to assess the trust company in addition with the value of shares of national bank stock held by it, and the court held that these shares had already, in effect, been taxed, because the whole amount of the assets of the bank had been valued and its debts had been deducted therefrom, so that it was taxed like an individual upon its net worth. Counsel for the city had apparently argued that no harm was done to the trust company by this method, since, if it had been properly taxed, the valuation would have been very much higher than it was; and it was in answer to this argument, and solely in answer to this argument, that this court used the language above referred to. It seems probable that the question was but little discussed, as was quite natural in view of the fact that the tax as assessed upon capital and surplus had been already paid. and the question involved was the taxability of certain specific

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assets. No reference is made in the opinion to the constitutional difficulty presented in Fidelity Trust Company v. Vogt, nor to the fact that the act of 1903 was a revision and not meant to change the existing law except where a change was clearly indicated, nor to the difficulty which is now presented, growing out of the inconsistency between section 17 and section 18, if that construction be adopted. We do not feel, therefore, that we are bound by the remark of the court in that case.

One argument remains to be considered. The act provides that no franchise tax shall be imposed upon trust companies, and it is said that in assessing the shares of national banks at their market value the value of the franchise is necessarily included. That is the fact; but it applies equally to the assessment of the capital stock of trust companies under the rule of Fidelity Trust Company v. Vogt which we have herein adopted. The express prohibition of a franchise tax on trust companies is not in point. The words "franchise tax," in our legislation, have a special meaning, and signify the annual license fee exacted by the state for the privilege of doing business in corporate form. Honduras Company v. Board of Assessors, 25 Vroom 278, a case which has been repeatedly cited and followed. Such a tax is in no sense a property tax. Section 5219 of the United States Revised Statutes, sections 17 and 18 of our Tax act of 1903 and the act of 1905, above cited, deal only with the property tax. None of them assumes to deal with a payment which is not really a tax, but a compensation paid to the government, state or national, as the case may be, for a special privilege-a license fee. This license fee is exacted by the state for the special privilege which the state grants to be a corporation, and the state may exact it or not as it chooses. The national government might exact a similar fee from the national banks which it creates. In fact it has not done so. In this respect national banks and trust companies stand on the same level. Whatever value the franchise of either may add to the property of the shareholders is reached by the property tax imposed in the case of national banks upon the shares and included in the total valua

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tion required by section 17, and imposed in the case of trust companies upon the capital stock and included in the full amount required to be taxed by section 18.

The judgment of the board of equalization reducing the assessment must be set aside, with costs. It is agreed that if this is done the amount fixed by the county board is correct. The stock, therefore, should be assessed at that valuation.

SCALLEY CARUSO, PLAINTIFF-APPELLEE, v. FREDERICK FATZLER, DEFENDANT-APPELLANT.

Submitted December 1, 1910-Decided April S. 1911.

Where A employed B to do an entire job of excavation and before the work was completed, and without fault of B, A engaged another person to complete the work, and such person, with men and horses, went to work-Held, not error for the trial court, sitting as a jury, to find for B for the value of the work done by him.

On appeal from a District Court.

Before Justices REED, PARKER and BERGEN.

For the plaintiff and appellee, Gaetano M. Belfatto.

For the defendant and appellant, Michael T. Barrett.

The opinion of the court was delivered by

REED. J. This action was brought in a District Court to recover for labor in carting dirt and rubbish from the premises of the defendant. The price for such labor to be paid by the defendant was $1.50 for each load of rubbish, and eightytwo cents for each cubic yard of dirt excavated.

The defendant insisted that the contract was to remove all the rubbish and dirt from the defendant's premises, and that the plaintiff failed to do so.

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