ing wrongs being done them and for preserv ing peace and friendship with them."

land not having been redeemed, the auditor, but laws founded in justice and humanity executed to him a deed. Aldrich conveyed shall from time to time be made for preventto the appellee in this case and assigned to him all his rights in the premises. Aldrich brought suit in the Allen Superior Court, after receiving his deed, to enforce a tax lien against said lands; but after the determination of the case, Wau-pe-man-qua, reported in 28 Federal Reporter, 489, holding that the land was not subject to taxation, his suits were dropped from the docket without any final adjudication. This suit was brought against the Board of Commissioners of Allen County to recover the amount paid for taxes by Aldrich, under the assumption that the lands above named were not subject to taxation.

It is contended by the appellant that as these lands were granted and patented to Richardville in fee simple, without any restraint upon alienation, for his own use, and not to any nation or tribe of Indians, or for their benefit, that they are subject to taxation as any other lands in the State.

On the other hand, it is contended by the appellee that the Indian title to these lands was never extinguished, and as the owners of the same have kept up their tribal relations with the Miami Nation and have never become citizens of the United States, the lands are within the purview of article 3, Ordinance 1787; and are not, therefore, subject to taxation by the State.

So far as we are informed by the record, no effort was ever made to tax these lands prior to the year 1871. Long acquiescence in the imposition of taxes, unexplained, raises a presumption of a surrender of the privilege of exemption. Given v. Wright, 117 U. S. 648, 29 L. ed. 1021.

In the month of April, 1816, Congress passed an Act which provided that the people of the Indian Territory might form a constitution and be admitted into the Union; provided that the same when formed should be republican, and not repugnant to the articles of the Ordinance of July 13, 1787, which are declared to be irrevocable between the original States and the people and the States of the territory northwest of the River Ohio, etc. On the 10th day of June, 1816, the Territorial Legislature of Indiana enacted the following: That we do for ourselves and our posterity agree, determine, declare and ordain that we will and do hereby accept the proposition of the Congress of the United States as made and contained in their Act of April nineteen, eighteen hundred sixteen, etc."

It will thus be seen, as adjudged in the cases above cited, that Indiana made a solemn compact with the United States by the terms of which certain portions of the Ordinance of 1787, among which is the clause above set out, was kept in force. This clause is a provision in favor of the Indian tribes resid ing on Indian territory, and as such is to be liberally construed in their favor. Choctaw Nation v. United States, 119 U. S. 27, 30 L. ed. 314; United States v. Kagama, 118 U. S. 383, 30 L. ed. 231; The Kansas Indians, 72 U. S. 5 Wall. 737, 18 L. ed. 667.

It takes no argument to prove that if the State of Indiana can tax these lands, and sell them for the nonpayment of such taxes, it may deprive the owners of such lands of their title and use without their consent. This the clause of the Ordinance of 1787, above set out, prohibited.

As it does not appear in the special verdict that these lands, prior to that date, had been assessed for taxation, we think it should be assumed, for the purposes of this case, that It is claimed, however, by the appellee they had not paid taxes for the support of that this case does not come within the rule the state and county government up to that laid down in the case of Me-shing-go-mesia time. If for any reason they had been le- v. State, supra, for the reason that it was gally exempt from taxation between the year patented to Richardville in fee simple, with1818 and the year 1871, the burden of show-out any restraint upon alienation and for his ing that something had occurred between own use, and not for the benefit of a tribe those dates which rendered them liable to of Indians. The cases relied upon by the taxation rested upon the appellant. Such appellee as sustaining this position, viz. : reason is not found in any change in our Taylor v. Vandergrift, 126 Ind. 325; Lowry Statute upon the subject, for the statutes de- v. Weaver, 4 McLean, 82; Pennock v. Frankclaring what lands in the State shall be sub-lin County Comrs. 103 U. S. 44, 26 L. ed. ject to taxation have remained substantially 367; Langford v. Monteith, 102 U. S. 147, 26 the same from 1848 to 1881.

It is earnestly contended by the appellant that the Ordinance of 1787 is not in force in the State of Indiana; but it has been judicially determined that the third article of that ordinance is in force in this State. Meshing-go-mesia v. State, 36 Ind. 310; Waupe-man-qua v. Aldrich, 28 Fed. Rep. 489.

The third article of that ordinance contains this clause: "The utmost good faith shall always be observed towards the Indians. Their lands and property shall never be taken from them without their consent; and in their property rights and liberty they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress;

L. ed. 54; Pka-o-wah-ash-kum v. Sorin, 8 Fed. Rep. 740; Hilgers v. Quinney, 51 Wis. 62; McMahon v. Welsh, 11 Kan. 280; Miami County Comrs. v. Brackenridge, 12 Kan. 114; South Western R. Co. v. Wright, 116 U. S. 231, 29 L. ed. 626,- -are not, in our opinion, in point in this case. Those bearing upon the question under immediate consideration turn upon the construction of particular treaties and statutes; but none of them bear upon the construction to be placed upon the Ordinance of 1787. There is nothing in the language used in the clause here involved limiting it in the manner contended for by the appellee. The language is broad enough to cover the claim of individual Indians,

1891.

HYLAND V. CENTRAL IRON & STEEL Co.

The

et al., Appts.,

v.

CENTRAL IRON & STEEL CO.

(.... Ind.....)

Taxation of the excess in value of the
capital stock of a corporation over
that of its tangible property subjected
to taxation is not prohibited by a statutory pro-
vision that when the tangible property of a cor-
poration is, its shares of capital stock shall not be,
listed and assessed for taxation.

and titles held in fee simple, acquired by | Thomas HYLAND, Auditor of Clay County,
treaty or otherwise from the United States.
We are unable to discover any substantial
reason for depriving an Indian of his land
without his consent, where he owns a fee-
simple title, when he would be permitted to
hold it if his title were less than a fee.
question as to whether these lands are subject
to taxation by the State does not, we think,
depend so much upon the question as to
whether the owners hold the fee or a less es-
tate, as it does upon the question of their
tribal relations. That the owners of this land
constituted a part of the Miami Nation and
have kept up their tribal relations is abun-
dantly shown by the special verdict before
us. They are not citizens of the United
States; and, indeed, could not rid themselves
of their allegiance to their nation and be-
come citizens without the consent of the
United States. Elk v. Wilkins, 112 U. S. 94,

28 L. ed. 643.

(September 15, 1891.)

the Circuit Court for Clay County in favor
APPEAL by defendants from a judgment of
of plaintiff in an action brought to enjoin de-
fendants from collecting a tax assessed on plain-
tiff's capital stock by the County Board of
Equalization. Reversed.

The case sufficiently appears in the opinion.
Messrs. William B. Schwartz, James
A. McNutt and Hiram Teter, for appel-
lants:

A 8

At the time the lands were granted to Richardville, he was the principal chief of the Miami Nation. It has been held by this The right to assess the franchises or capital court that the lands granted to Me-shing-gome-sia, an inferior chief, were not subject to stock of individuals or corporations is a conIt is not reasonable ceded or adjudged principle, and has ceased to taxation by the State. to presume that it was the intention of Rich-be a subject of discussion or argument. ardville and of the government to place his lands where they could be taken without his consent, while all the other lands reserved to the Miamis were placed beyond the reach of In our opinion, the lands described in the complaint in this case were not subject to taxation for state and county purposes during the period for which they What the status of this land were assessed.

the State.

Cooley, Taxn. pp. 82, 379, 383; People v. ten, 1 Cent. Rep. 770, 100 N. Y. 597.

It is nowhere averred that appellee has tendered the taxes properly chargeable to it, and there is nothing in the complaint showing any intention to ever pay any taxes, and the appellee can therefore have no standing in equity.

Logansport v. McConnell, 121 Ind. 416.

There are two entirely separate and distinct quantities in relation to every private business corporation, that may become the object of assessment for the purposes of taxation, to wit, the corporate property in its proprietary sense to the corporation as owner, and the capital These two stock, representing the aggregate of the shares held by the individual owners. separate quantities may be regarded as distinct legal units not in any manner alike, but in contemplation of law and in fact possessed of independent attributes and values.

And since the board assessed the value of said capital stock of corporation and therefrom deducted the assessed value of all the tangible property, there is in this case no double taxa

is now we are not called upon to decide. We are not unmindful of the fact that the conclusion here reached is in seeming conflict with the case of State v. Miami County Comrs., 63 Ind. 497. That was an action by the State on the relation of Godfrey, to compel the Board of Commissioners of Miami County, by writ of mandamus, to refund certain taxes alleged to have been illegally It was held that assessed and collected. mandamus was not the proper remedy. It was also held that the complaint was bad for the further reason that it did not allege that the land upon which the tax had been assessed was reserved to the Indians as a band. and not to them individually; but the question in any sense. Wright v. Stiltz, 27 Ind. 341; Cooley, Taxn. tion of the effect of the Ordinance of 1787 upon the lands assessed was not decided; and, sogg 223, note, 226, 218, 230, 232, and cases cited far as we know, was not considered. How-on pp. 226, 227; 9 Am. Law Rep. 73; La Salle ever, the question as to whether these lands are exempt from taxation under the treaties and laws of the United States is a federal question, and it was expressly held in the case of Wau-pe-man-qua v. Aldrich, supra, that they are not subject to taxation, and that the particular tax involved in this suit was void. The reasoning in that case seems to us to be sound, and we know of no reason

NOTE.-Taxation; shares of capital stock.

Stock means not only stock subscriptions but the actual tangible property of the corporation. Michigan Cent. R. Co. v. Porter, 17 Ind. 380; Floyd County v. New Albany & S. R. Co. 11 Ind. 570; State v. Hamilton, 5 Ind. 310; State v. Branin, 23 N. J. L. Whitesell v. Northampton County, 49 Pa. 526. 484; McKeen v. Northampton County, 49 Pa. 519; Shares of stock in incorporated companies,

why we should hold the opinion rendered by whether the property of such companies be tangi

the federal court erroneous.
Judgment affirmed.

McBride, J., took no part in the decision
of this case.

ble or intangible, are personal property. Seward v. Rising Sun, 79 Ind. 351. See 1 Desty, Taxn. 351353.

Taxation of corporate stock. See note to People v. Coleman (N. Y.) 12 L. R. A. 762.

by the appellee contains
ments:

"Actual value of stock
Total amount of indebtedness ex.
cept for the indebtedness for the
current expenses, excluding from
such expense the amount paid for
the purchase and improvement of
property

Assessed value of lands

66

66

66

personal property Total assessed valuation of all tan

$150,000

these state-taxation, then, to the extent of its value in excess of the value of the tangible property, it may be listed and assessed; for it is apparent that in such a case there is not double taxation. It cannot be assumed that the tangible property necessarily represents the value of the capital stock, for the business of a corporation owning comparatively little tangible property may be so profitable as to impress upon its stock a value much beyond its tangible property; or it may be the owner of a franchise which gives the stock a value much greater than that of the tangible property of which it is the owner. A corporation which, in its sworn return, values its capital stock at almost five times as much as its tangible property, cannot successfully assert that the taxation of its tangible property entirely absolves its capital stock from liability. It is, at all events, entirely clear that where it affirmatively appears, as it does from the evidence in this case, that the tangible property is not equal to the value of the stock, the stock is taxable to the extent that it exceeds in value the tangible property. The only evidence as to the value of the capital stock, as well as the only evidence of the value of the tangible property, was that contained in the tax list or schedule; and that certainly does not prove, or tend to prove that there was double taxation, since the actual value of the capital stock is shown to exceed that of the tangible property more than $100,000.

284, 761 7,485 27,830 gible property of said Company 35,315." It thus appears from the appellce's return of property for taxation, that the tangible property is of less value than the capital stock; inasmuch as the actual value of the capital stock is $150,000, while the tangible property is of the value of $35,315. This fact clearly and decisively discriminates the present case from Hyland v. Brazil B. Coal Co. insomuch as in that case, according to the confessed allegations of the complaint, the entire capital stock was invested in and represented by the tangible property returned for taxation. We there said that "the question whether an assessment may be levied upon capital stock to the extent to which it exceeds in value the tangible property is not presented by the complaint; nor is the question whether corporate franchises may be taxed where they have a value over and above the capital stock presented for our decision." The question which we declared not then before us is now presented.

It seems quite clear that no tax-payer can be twice taxed upon the same property, and so the authorities declare. State v. Hannibal, & St. J. R. Co. 37 Mo. 265; People v. Badlam, 57 Cal. 594; State v. Cumberland, & P. R. Co. 40 Md. 22; Cooley, Taxn. 225.

Where the property once pays its full share of taxes to the State or county, it cannot be subjected to a greater burden for the same purposes, although it may be subjected to special taxes in the form of assessment for local improvements, or to municipal corporation taxes in common with other property. Where there is an attempt to doubly tax property, there is a violation of law. Our Statute provides that "in all cases where the tangible property of an incorporated company is listed and assessed under this Act, the shares of capital stock of such incorporated companies shall not be listed and assessed." Rev. Stat. 1881, § 6305, 6308.

This provision was intended to prohibit double taxation and enforces the principle stated by us. We cannot, however, hold that the provision quoted is to be considered apart from other provisions of the Statute and construed as prohibiting the taxation of capital stock in all cases; on the contrary, we hold, as was held in Hyland v. Brazil B. Coal Co., supra, that it is to be considered in connection with other provisions of the Statute, and that, when so considered, it does not exclude the taxation of capital stock where it is not invested in and fully represented by tangible property subjected to taxation. If the capital stock exceeds in value the tangible property subject to taxation and assessed for

The record affirmatively shows that there was authority in the board of equalization to act upon the list returned by the appellee, for there was such a list placed before it, and the statute vests it with jurisdiction over the subject. Rev. Stat. 1881, § 6305-6308, 6357, 6358, 6359; Hyland v. Brazil B. Coal Co. supra.

The list showed that the capital stock was subject to taxation to the extent that it exceeded in value the tangible property; so that there was not, as in Hyland v. The Brazil, B. Coal Co. an attempt to subject property to taxation which was not taxable. Here there was jurisdiction, for here there was a list placed before the board of equalization as the law requires; that list disclosed property subject to taxation, and on that property, the capital stock, the Statute expressly makes it the duty of the board to place a value. It may well be doubted whether the courts can interfere at all in such a case as this; for the rule supported by the weight of authority is, that where there is jurisdiction and no principle of law is violated, the valuation of the board of equalization is conclusive. Cooley, Taxn. 747, 748; Small v. Lawrenceburgh (Ind.) (May 1, 1891). Pulaski County Comrs. v. Senn, 117 Ind. 413. Three is here no evidence that the valuation of the board was roneous; and certainly no reason for setting it aside, even if the courts had power to do so. If the board had placed a much greater value upon the capital stock than that fixed by the appellee in the schedule, its action could not, under the rule referred to, be disturbed, unless it was made to appear that some principle of law was violated; but the

er

TENNESSEE SUPREME COURT.

MERCHANTS' COTTON-PRESS & STOR- 4. Carriers making a through contract

NOTE.-Common carrier may limit his responsi- | erwise than by the negligence of the company or its