to pay on or before July 31, 1919, or else the assessment would become delinquent and the penalties provided by the act would be added. The receiver appeared before the Secretary of State by counsel and endeavored to obtain a cancellation of the assessment, but the Secretary having refused to cancel or modify it, the receiver paid to the Secretary of State the sum of $2250, the amount of the assessment, under protest, and a bill was filed in the name of the railway company and the receiver to restrain the Secretary of State from paying the money over to the treasurer and to require him to re-pay it to the receiver. The bill, in addition to the facts stated, alleged that the railway company previous to the receivership was operating the railroad, extending from Effner, in the State of Indiana, through the State of Illinois and into the State of Iowa, and was engaged as a public utility in intrastate and interstate commerce as a common carrier of passengers and goods; that during the whole of the year 1919, for which the license fee or franchise tax was assessed, the railroad was operated exclusively by the Director General of Railroads of the United States; that neither the railway company nor its receiver was in possession, control or operation of the railroad or transacted any transportation business within the State of Illinois or elsewhere, and that if any franchise tax may be assessed against the railway company it should be assessed under section 107 of the general Corporation act instead of under section 106, as it was assessed by the Secretary of State. It is also charged that the assessment was wrongfully made upon the total amount of capital stock authorized to be issued under the laws of the State of Illinois, ($4,500,000,) of which $4,076,900, only, had in fact been issued, and before any additional stock of the company can lawfully be issued it will have to be authorized by the Public Utilities Commission of the State of Illinois. A temporary restraining order was entered restraining the Secretary of State from paying the

amount received into the State treasury. A demurrer to the bill was overruled, and the defendant having elected to stand by the demurrer, an order was entered perpetually enjoining the payment of the sum of $211.56 into the State treasury and requiring its return to the receiver. The defendant has appealed and the complainants have assigned

cross-errors.

The only question raised by the appellant's assignment of errors is whether the assessment should be based upon the amount of $4,500,000, the total amount of capital stock which the corporation was authorized to have, or upon the amount of $4,076,900, the amount of capital stock which had been issued. The claim of the appellees that the assessment should be based upon the latter amount is founded on the fact that the corporation is a public utility corporation and its power to issue its stock is subject to the supervision, regulation and control of the State Public Utilities Commission, and can be exercised only under such rules and regulations as the commission may prescribe. The decision of the question requires the determination of the meaning of the words "authorized capital stock," in section 105 of the general Corporation act. The appellant contends that the language refers to the total amount of capital stock authorized by the articles of incorporation; the appellees, that it refers to the amount of capital stock which the corporation has been authorized to issue under the regulations of the Public Utilities Commission, in accordance with sections 20 and 21 of the Public Utilities act.

The expression "capital stock" or "authorized capital stock" is capable of use to express different meanings. It may be used to designate the capital stock which the corporation is authorized to have or the capital stock authorized by the directors to be issued, or, in the case of a public utility, the capital stock authorized by the Public Utilities Commission to be issued in accordance with its regulations. "Capital stock is the sum fixed by the corporate charter as

the amount paid in, or to be paid in, by the stockholders for the prosecution of the business of the corporation and for the benefit of corporate creditors. The capital stock is to be clearly distinguished from the amount of property possessed by the corporation. Occasionally it appears that, under the terms of statutes relating to taxation which have been drawn without regard to the technical meaning of words, the courts will construe the capital stock to mean all the actual property of the corporation. But this is for the purpose of carrying out the intent of the statute and is not the real meaning of the term. At common law the capital stock does not vary but remains fixed, although the actual property of the corporation may fluctuate widely in value and may be diminished by losses or increased by gains." (I Cook on Stock and Stockholders, sec. 9; Morawetz on Private Corp. sec. 781; 2 Beach on Private Corp. sec. 466; Farrington v. Tennessee, 95 U. S. 679; Markle v. Burgess, 176 Ind. 25; Tradesman Publishing Co. v. Knoxville Car Wheel Co. 95 Tenn. 634; State v. Clement Nat. Bank, 84 Vt. 167.) It is this invariable sum fixed by the charter as the amount to be paid in by the stockholders for the prosecution of the business of the corporation and for the benefit of the corporate creditors which is ordinarily understood by the term "capital stock" unless the context indicates a different meaning. The capital stock is not the same thing as the capital of the corporation or its actual property, the value of which may fluctuate from time to time. However much the value of the property of the corporation may increase in the prosecution of a successful enterprise or may be diminished by losses incurred, the capital stock remains unchanged. The fees and franchise taxes which every corporation must pay under the general Corporation act are fixed by sections 96 to 107, inclusive, of that act. The initial fee is provided for by section 96 and is one-twentieth of one percentum upon the amount of the capital stock which the corporation is authorized to have,

and the section provides that each public utility corporation shall pay the same fees as are required to be paid for incorporation by other corporations organized for pecuniary profit. Section 99 provides that when a public utility corporation shall renew its charter or extend the term of its existence the Secretary of State shall charge and collect the same fees as provided in the case of a new company. The annual license fee or franchise tax which each corporation for profit, including railroads, (except insurance companies,) is required to pay by section 105 is also one-twentieth of one percentum upon the authorized capital stock. Public utility corporations are not specifically mentioned, but there is nothing to indicate that the authorized capital stock upon which the franchise tax of such corporations is to be assessed is any different from the authorized capital stock upon which other corporations are to be assessed.

In American Can Co. v. Emmerson, 288 Ill. 289, an objection was made to the amount of the tax assessed against a foreign corporation under section 56 of the Foreign Corporation act then in force, that in ascertaining the proportion of the capital stock represented by property located and business transacted in the State of Illinois the Secretary of State used as a basis the entire capital stock of the company, including the unissued as well as the issued capital stock, but it was held that the words referred to the amount of capital stock authorized by the charter and not the stock actually issued; and so it was held in Hump Hairpin Manf. Co. v. Emmerson, 293 Ill. 387.

A public utility corporation, upon filing the statement required by section 4 of the general Corporation act, becomes a corporation having an authorized capital stock of the amount provided in the statement, though such stock can only be issued with the consent and approval of the Public Utilities Commission. So under section 28, any corporation which in its statement of incorporation has specified an amount of stock which it is proposed to issue at once,

less than the total amount fixed by such statement, cannot issue any stock in addition to that specified as to be issued at once until a statement showing the total amount of the capital stock authorized by the articles of incorporation, the amount already issued, the extent to which it is paid up, the additional stock proposed to be issued and the manner in which it is to be paid up, with a description and valuation of property, if any, to be received in payment of such stock, and stating that of the capital stock then proposed to be issued at least one-half of the par value of such stock having a par value and not less than five dollars per share for each share of capital stock having no par value will be paid in in money or property, has been filed with and approved by the Secretary of State. In either case the unissued part of the stock of the corporation is a part of its authorized capital stock, though it may be issued only in compliance with the provisions of the statute authorizing its issue.

The court erred in holding that the tax should have been assessed only upon the stock actually issued and not upon the full amount of the authorized capital stock of the corporation.

By the assignment of cross-errors it is contended that no franchise tax could be imposed upon the corporation for the exercise of its franchise while its property and business were in the hands of a receiver or the Federal government. There is a conflict in the decisions as to whether a corporation is liable to a franchise tax when its property is in the hands of a receiver who operates and controls it. In McCoach v. Minehill and Schuylkill Haven Railroad Co. 228 U. S. 295, it was held that a railroad company which had leased its entire railroad, with all its rights, powers, privileges and franchises, except that of being a corporation, for a term of years at an annual rental, the lessees agreeing to keep the road in good repair and in public use and efficiently operated and return it to the lessor at the termination of the lease, was not engaged in business