A franchise granted by the proper authorities of Indiana for
maintaining a ferry across the Ohio River from the Indiana shore to
the Kentucky shore, is an Indiana franchise, an incorporeal
hereditament derived from, and having its legal situs for purposes
of taxation in, Indiana.
The fact that such franchise was granted to a Kentucky
corporation, which held a Kentucky franchise to carry on the ferry
business from the Kentucky shore to the Indiana shore (the
jurisdiction of Kentucky extending only to low water mark on the
northern and western side of the Ohio River) does not bring the
Indiana franchise within the jurisdiction of Kentucky for purposes
of taxation. The taxation of the Indiana franchise by Kentucky
would amount to a deprivation of property without
Page 188 U. S. 386
due process of law in violation of the provisions of the
Fourteenth Amendment.
Quaere, whether such taxation would be a burden on
interstate commerce and make it inconsistent with the power of
Congress to regulate commerce among the several states, not
decided.
This action was brought against the Louisville &
Jeffersonville Ferry Company, a corporation of Kentucky, to recover
certain taxes alleged to be due that commonwealth in virtue of the
valuation and assessment by the state board of valuation and
assessment of the corporate franchise of the defendant company for
the year 1894.
Some of the provisions of the Revised Statutes of Kentucky under
which that board proceeded are given in the margin.
*
Page 188 U. S. 387
The company filed an answer which, upon demurrer, was adjudged
to be insufficient. The defendant declining to answer further,
judgment was rendered for the commonwealth. That judgment was
affirmed by the Court of Appeals of Kentucky, and the case is here
upon writ of error sued out by the ferry company. The ground of our
jurisdiction is
Page 188 U. S. 388
that the company claims that, by the judgment of the highest
court of Kentucky, affirming the judgment of the court of original
jurisdiction, it has been denied rights belonging to it under the
Constitution of the United States.
The facts admitted by the demurrer to the answer, and therefore,
for the purposes of the present hearing, to be taken as true, are
substantially as follows:
By an act of the General Assembly of Kentucky, approved March
the 16th, 1869, the Louisville & Jeffersonville Ferry Company
was created a corporation, with power to carry on the business of
ferrying freight, passengers, and vehicles over the Ohio River, and
to purchase ferryboats, wharves, and ferry franchises for any ferry
or ferries between Louisville, Kentucky, and Jeffersonville,
Indiana, and upon the purchase of such franchises, to have the
right to carry on and conduct a ferry or ferries between those
cities. It was also authorized to accept boats, franchises,
wharves, and other property in payment of stock subscribed and at
such prices as might be agreed on.
In the year of 1802, William Henry Harrison, then governor and
commander-in-chief of the Indiana Territory, granted to Marsden G.
Clark a license for a ferry at Jeffersonville, Indiana, for the
transportation of passengers, carriages, horses, and cattle across
the Ohio River at that place.
In the same year, Governor Harrison granted to one Joseph Bowman
a license to keep a ferry from the landing near the spring in the
Town of Jeffersonville across the Ohio River to the public road at
the mouth of Bear Grass Creek in Kentucky.
In 1820, George White, by an act of the Indiana Legislature, was
authorized to keep a ferry in the Town of Jeffersonville, and to
ferry off and from any portion of the public ground or commons in
that town lying upon or bordering upon the Ohio River across that
river to the opposite shore or mouth of Bear Grass Creek, that
creek being then as well as now within the corporate limits of
Louisville and near the point at which the defendant company now
lands its ferryboats in Kentucky.
These three ferry franchises, about the year 1837, vested in A.
Wathen, Charles Strader, John Shallcross, and James
Page 188 U. S. 389
Thompson, and in 1865 came to be owned by John Shallcross, Moses
Brown, Hiram Mayberry, James Wathen, A. Wathen, Charles Woolfolk
& Co., J. B. Smith, W. C. Hite, E. S. Hoffman, P. Varble, and
Daniel Park. During all the intervening years, ferries had been
maintained.
In 1865, the persons then owning the ferry organized as a
partnership for the purpose of operating it, and in that capacity
continued to operate it until the Louisville & Jeffersonville
Ferry Company was incorporated, as above stated. Under its act of
incorporation, the company procured to be conveyed to itself the
above-mentioned ferry franchises with the boats then owned by the
partnership, and issued therefor its fully paid capital stock for
$200,000. The boats and personal property so acquired were not of
great value -- the principal value being in the franchises acquired
as above set forth.
In 1887, the defendant company made a contract with the Sinking
Fund Commissioners of the City of Louisville, a corporation having
charge of certain fiscal affairs of that city, under which the
defendant leased the ferry privileges in Louisville, agreeing to
pay therefor $800 a year and a wharfage fee annually of $400. That
contract, by its terms, expired January the 1st, 1902.
The defendant company states in its answer "that the only ferry
franchises owned by it are those above mentioned, which were
granted by the authorities of the State of Indiana."
All tangible property of the defendant company in Kentucky was
assessed in the fall of 1893 for the state tax for the year 1894,
and that tax was paid. The property so assessed consisted of all
the company's boats and other personal property, it having no real
estate in Kentucky. For the same year, all real estate owned by the
defendant in Indiana was assessed by the authorities of that state,
and the tax thereon paid.
The company had no intangible property except the franchise
heretofore described.
"The Board of Valuation and Assessment ascertained what had been
the net earnings of the defendant up to September 15th, 1893, for
the year preceding that date. It then capitalized said net earnings
at 6 percent -- that is, to have been such an amount
Page 188 U. S. 390
as at 6 percent would produce the sum of $121,050. From this the
board deducted $54,164, being the assessed value of the defendant's
property in Kentucky and Indiana, leaving the sum of $66,886 as the
value of defendant's franchise."
The boats owned by the defendant company when this action was
brought, and also those owned by it in 1893,
"were regularly enrolled, under the laws of the United States at
the port of Louisville, and were assessed, as above stated, by the
Sheriff of Jefferson County, in the fall of that year, and the tax
paid upon them in the year 1894."
The defendant brought
"before the Board of Valuation and Assessment, before that board
had made its assessment final, the fact that its whole capital
stock had been issued in consideration of the transfer of the said
ferry franchises granted by the State of Indiana and attendant
property, and showed that all its property had been assessed as
above explained, and protested against any assessment being made
upon its franchises as being beyond the jurisdiction of the said
board and outside of the territorial jurisdiction of the State of
Kentucky, and not taxable in Kentucky, and it protested against the
said board's making any valuation whatever of its capital stock
because all of its property had been once assessed, and any
valuation made upon its capital stock would include alone these
franchises and profits resulting to the defendant from engaging in
interstate commerce, and the defendant further requested the said
board, if it should insist upon making a valuation upon its capital
stock, to deduct therefrom the value of these franchises. The said
board refused to enter into the question of the valuation of the
said franchise granted by the State of Indiana, as aforesaid, and
owned and operated by this defendant, and refused to regard the
fact that the profits which were earned by this defendant came from
interstate commerce."
Substantially the whole revenue of the defendant company is
derived from interstate commerce, and its net returns, upon which
the above capitalization was made, represent its gains from
interstate commerce -- that is, from the carriage of persons and
property between the States of Indiana and Kentucky. Such was the
case presented by the answer.
Page 188 U. S. 391
MR. JUSTICE HARLAN delivered the opinion of the Court.
The ferry company insists that the judgment of the Court of
Appeals of Kentucky, affirming the judgment of the court of
original jurisdiction (which sustained the action of the state
Board of Valuation and Assessment), had the effect to deny rights
belonging to it under the Constitution of the United States.
It is appropriate here to state the grounds upon which the Court
of Appeals of Kentucky proceeded. That court said:
"The judgments from which the appeals are prosecuted are for the
franchise tax for the years of 1894, 1895, 1896, 1897, and 1898.
The appellant is a corporation organized under a special act of the
legislature passed in 1869. It purchased a ferry franchise, which
had been originally granted by the territorial authorities of
Indiana, which authorized the original grantee to conduct a ferry
business across the Ohio River from Indiana to Kentucky. By regular
devolution of title through descents and conveyances, appellant
owns the rights thus granted. The franchise thus acquired
authorizes the appellant to transport persons and property from
Jeffersonville, Indiana, to Louisville, Kentucky. There was vested
in the Sinking Fund Commissioners of the City of Louisville title
to the ferry rights along the Ohio River within the boundaries of
that city, and by an agreement with them the appellant became the
owner of it. The appellant owned certain ferry boats which are
enrolled at the port of Louisville. It owned certain real estate in
the State of Indiana. It has paid its taxes upon its real property
in Indiana and upon its personal property in this state. It has
paid its taxes only upon its tangible property. It appears to have
no income except the revenue derived from carrying persons and
property from one side of the river to the other. The
Page 188 U. S. 392
Board of Valuation and Assessment fixed the value of the
franchise for the corporation as if it conducted all of its
business in the territorial limits of the State of Kentucky, not
deducting anything from that value on account of the fact that it
exercised the privilege of conveying passengers from Jeffersonville
to Louisville by reason of its acquisition of privileges which were
originally granted under the laws of that state. . . . The
appellant is a Kentucky corporation. The Board of Valuation and
Assessment did not attempt to assess or tax its revenues coming
from the exercise of its franchise in the transportation of persons
and property over the Ohio River, but, under certain sections of
the Kentucky statutes, it assessed the value of appellant's
franchise, which is its intangible property. The board did not
assess or attempt to assess the property, either tangible or
intangible, which it owned in the State of Indiana."
Again:
"By virtue of its corporate authority, the appellant acquired
ferryboats, the ferry rights, within the City of Louisville, which
included the right to transport persons and property from Kentucky
to Indiana over the Ohio River, and the necessary use of its wharf
to carry on that business. It also by contract (which its charter
seems to have authorized it to do) acquired wharf privileges on the
Indiana side, and also the right which had been previously granted
by Indiana to transport persons and property from Indiana to
Kentucky over the Ohio River. It also owns a park in Indiana. The
property thus acquired constituted all of its property, tangible
and intangible, in Kentucky and Indiana. Having thus acquired the
foregoing property, and having profitably used it, its corporate
franchise presumably became of the value fixed by the Board of
Valuation and Assessment. If the franchise of the appellant became
valuable by the acquisition of tangible or intangible property or
both, the effect is exactly the same whether it is acquired in
Indiana or in Kentucky or both. It is not the tangible or
intangible property in Indiana which the appellant acquired by
purchase which is sought to be taxed, but the value of its
franchise which has been created in and now exists in Kentucky. . .
. The State of Kentucky is not attempting to impose a tax upon
receiving and handling persons and property,
Page 188 U. S. 393
but is simply attempting to collect a franchise tax on the
corporation created by law. . . . There is no doubt but what the
business which the appellant carries on may be property designated
as 'interstate commerce,' and that it is a subject of national
character, Congress having the authority and the power under the
Constitution to regulate it. The State of Kentucky is not
attempting to impose a tax upon receiving and handling persons and
property, but is simply attempting to collect a franchise tax on
the corporation created by law. As authorized by the laws and
Constitution, the state is entitled to impose a tax upon its
tangible property. . . . The appellant is domiciled in Kentucky,
and the property sought to be taxed has its situs in Kentucky, and,
as we have said, there is no attempt to tax the appellant's
business income or revenue, but its income is alone considered in
fixing the value of its franchise."
It thus appears from the admitted facts and from the opinion of
the court below that the state board, in its valuation and
assessment of the franchise derived by that company from Kentucky,
included the value of the franchise obtained from Indiana for a
ferry from its shore to the Kentucky shore. In short, as stated by
the Court of Appeals, the value of the franchise of the ferry
company was fixed "as if it conducted all of its business in the
territorial limits of the State of Kentucky," making no deduction
for the value of the franchise obtained from Indiana.
The boundary of Kentucky extends only to low water mark on the
western and northwestern banks of the Ohio River.
Henderson
Bridge Company v. Henderson, 173 U. S. 592,
173 U. S.
609-613, and authorities there cited. In that case it
was said that, although the jurisdiction of that commonwealth for
all the purposes for which any state possesses jurisdiction within
its territorial limits was coextensive with its established
boundaries, that jurisdiction was attended by the fundamental
condition that it must not be exerted so as to entrench upon the
authority of the national government or to impair any rights
secured or protected by the national Constitution.
So that the authority of the ferry company, derived from
Page 188 U. S. 394
Kentucky, to transport persons, freight, and property across the
Ohio River from Kentucky did not invest it with authority to
establish and maintain a ferry from the Indiana shore to the
Kentucky shore. That is admitted by the counsel for Kentucky.
Indeed, in
Newport v. Taylor's Ex'rs, 16 B. Mon. 699, 786,
the Court of Appeals of Kentucky said that
"Kentucky has never claimed the exclusive right of ferriage
across the Ohio River except from this shore, and while she has
interdicted the establishment of ferries from this side, within a
certain distance of an established ferry on this side, she has
constantly recognized the right of the authorities on the other
side to establish ferries from that side, without regard to the
interdict."
The same thought was expressed in
Reeves v. Little, 7
Bush, 470. The case of
Newport v. Taylor's Ex'rs was
brought to this Court, and the judgment of the Court of Appeals of
Kentucky was affirmed.
Conway v.
Taylor, 1 Black 603,
66 U. S. 631.
Referring to the ferry franchise granted by Kentucky, this Court
there said:
"The franchise is confined to the transit from the shore of the
state. The same rights which she claims for herself she concedes to
others. She has thrown no obstacle in the way of the transit from
the states lying upon the other side of the Ohio and Mississippi.
She has left that to be wholly regulated by their ferry laws. We
have heard of no hostile legislation, and of no complaints, by any
of those states. It was shown in the argument at bar that similar
laws exist in most, if not all, the states bordering upon those
streams. They exist in other states of the Union bounded by
navigable waters."
It must therefore be assumed that the franchise granted by
Indiana to maintain the ferry from the Indiana shore is wholly
distinct from the franchise obtained from Kentucky to maintain the
ferry from the Kentucky shore, although the enjoyment of both are
essential to a complete ferry right for the transportation of
persons and property across the river both ways. And each franchise
is property entitled to the protection of the law. Kent says that
the privilege of establishing a ferry and taking tolls for the use
of the same is a franchise, and that
"an estate in such a franchise and an estate in land rest upon
the same
Page 188 U. S. 395
principle, being equally grants of a right or privilege for an
adequate consideration."
3 Kent 459. In his Treatise on the American Law of Real
Property, Washburn says that the right granted by the legislature,
as representing the sovereign power, to carry passengers across
streams or bodies of water or the arms of the sea from one point to
another for compensation is to be deemed a franchise, and belongs
to the class of estates called incorporeal hereditaments. 2
Washburn §§ 1212, 1215, 6th edition.
See also 1
Cooley's Blackstone, Bk. II, pp. 21, 36. In
Conway
v. Taylor, 1 Black 632, this Court approved of
Kent's view, and said:
"A ferry franchise is as much property as a rent or any other
incorporeal hereditament or chattels or realty. It is clothed with
the same sanctity and entitled to the same protection as other
property."
In Kentucky, the right of the widow to have dower assigned to
her in a ferry has been recognized.
Stevens v. Stevens, 3
Dana 371.
As, then, the privilege of maintaining the ferry in question
from the Indiana shore to the Kentucky shore is a franchise derived
from Indiana, and as that franchise is a valuable right of
property, is it within the power of Kentucky to tax it directly or
indirectly? It is said that the Indiana franchise has not been
taxed, but only the franchise derived from Kentucky; that the tax
is nonetheless a tax on the Kentucky franchise because of the value
of that franchise being increased by the acquisition by the
Kentucky corporation of the franchise granted by Indiana. This view
sacrifices substance to form. If the Board of Valuation and
Assessment, for purposes of taxation, had separately valued and
assessed at a given sum the franchise derived by the ferry company
from Kentucky, and had separately valued and assessed at another
given sum the franchise obtained from Indiana, the result would
have been the same as if it had assessed, as it did assess, the
Kentucky franchise as a unit upon the basis of its value as
enlarged or increased by the acquisition of the Indiana
franchise.
The learned counsel for Kentucky says that it is the value of
the company's franchise contained "in its charter" which is the
subject of taxation. But the franchise obtained from Indiana is not
in the company's charter granted by Kentucky.
Page 188 U. S. 396
It is contained only in the act of the Legislature of Indiana.
The Indiana franchise was not carried into the charter of the
Kentucky corporation by reason of that corporation's having the
authority to purchase it. Its existence and validity depend
entirely upon the laws of Indiana.
Counsel further say that Kentucky does not impose a tax upon the
company's privilege, as such, granted by the State of Indiana. If
it had done so, the tax so imposed would not have been defended as
valid. Yet, by her statute, under which the Board of Valuation and
Assessment proceeded, Kentucky has accomplished that result by
including for purposes of taxation, in the valuation of the
franchise granted by it, the value of the franchise granted by
Indiana, and then taxing the franchise of the Kentucky corporation
upon the basis of the aggregate value of both franchises. Although
now owned by one corporation, these are separate franchises.
There is in our judgment no escape from the conclusion that
Kentucky thus asserts its authority to tax a property right, an
incorporeal hereditament, which has its situs in Indiana. While the
mode, form, and extent of taxation are, speaking generally, limited
only by the wisdom of the legislature, that power is limited by a
principle inhering in the very nature of constitutional government
-- namely that the taxation imposed must have relation to a subject
within the jurisdiction of the taxing government. Hence, this
Court, speaking by Chief Justice Marshall, in
McCulloch
v. Maryland, 4 Wheat. 316,
17 U. S. 429,
said that, while all subjects over which the sovereign power of a
state extends are objects of taxation, "those over which it does
not extend are, upon the soundest principles, exempt from
taxation." That proposition, he said, could almost be pronounced
self-evident. It was therefore held in
Hays v.
Pacific Mail S.S. Co., 17 How. 596,
58 U. S. 599,
that certain steamers engaged in interstate commerce were not
subject to taxation in a state where they might be temporarily when
prosecuting their business, but were taxable at their home port,
which was their situs, and where they belonged, the court
saying:
"We are satisfied that the State of California had no
jurisdiction over these vessels for the purpose of taxation; they
were not properly
Page 188 U. S. 397
abiding within its limits so as to become incorporated with the
other personal property of the state; they were there but
temporarily, engaged in lawful trade and commerce, with their situs
at the home port, where the vessels belonged, and where the owners
were liable to be taxed for the capital invested, and where the
taxes had been paid;"
in
St. Louis v. Wiggins Ferry
Co., 11 Wall. 423,
78 U. S.
429-431, that certain ferry boats belonging to an
Illinois corporation and plying between East St. Louis, Illinois,
and St. Louis, Missouri, were not taxable in the latter state, but
at their home port in the former state, the Court saying that a tax
was void when there was no jurisdiction as to the property taxed;
in
Morgan v.
Parham, 16 Wall. 471,
83 U. S. 476,
that a vessel engaged in interstate commerce, and being from time
to time in Mobile while prosecuting its business, was not taxable
in Alabama, but was taxable in New York, where it was owned and
registered, the Court saying that, in its opinion,
"the State of Alabama had no jurisdiction over this vessel for
the purpose of taxation, for the reason that it had not become
incorporated into the personal property of the state, but was there
temporarily only, and that it was engaged in lawful commerce
between the states, with its situs at the home port of New York,
where it belonged and where its owner was liable to be taxed for
its value;"
and in
Gloucester Ferry Co. v. Pennsylvania,
114 U. S. 196,
114 U. S. 206,
that
"the property of [foreign] corporations engaged in foreign or
interstate commerce, as well as the property of corporations
engaged in other business, is subject to state taxation, provided
always it be within the jurisdiction of the state."
In Cooley on Taxation, the author, while conceding that the
legislative power extends over everything, whether it be person,
property, possession, franchise, privilege, occupation, or right,
says that "persons and property not within the territorial limits
of a state cannot be taxed by it," and that
"a state can no more subject to its power a single person or a
single article of property whose residence or legal situs is in
another state than it can subject all the citizens or all the
property of such other state to its power."
2d ed., pp. 5, 55, 159.
We recognize the difficulty which sometimes exists in
particular
Page 188 U. S. 398
cases in determining the situs of personal property for purposes
of taxation, and the above cases have been referred to because they
have gone into judgment and recognize the general rule that the
power of the state to tax is limited to subjects within its
jurisdiction or over which it can exercise dominion. No difficulty
can exist in applying the general rule in this case, for, beyond
all question, the ferry franchise derived from Indiana is an
incorporeal hereditament derived from and having its legal situs in
that state. It is not within the jurisdiction of Kentucky. The
taxation of that franchise or incorporeal hereditament by Kentucky
is, in our opinion, a deprivation by that State of the property of
the ferry company without due process of law in violation of the
Fourteenth Amendment of the Constitution of the United States -- as
much so as if the state taxed the real estate owned by that company
in Indiana.
This view is not met by the suggestion that Kentucky can make it
a condition of the exercise of corporate powers under its authority
that the tax upon the franchise granted by it shall be measured by
the value of all its property, wherever situated, of whatever
nature, or from whatever source derived. It is a sufficient answer
to this suggestion to say that no such condition was prescribed in
the charter of the ferry company when it was granted and accepted.
Nor does the taxing statute in question make it a condition of the
ferry company's continuing to exercise its corporate powers that it
shall pay a tax for its property having a situs in another state.
There is no suggestion in the company's charter that the state
would ever, in any form, tax its property having a situs in another
state. We express no opinion as to the validity of such a condition
if it had been inserted in the company's charter or if it were now,
in terms, prescribed by any statute. We decide nothing more than it
is not competent for Kentucky, under the charter granted by it and
under the Constitution of the United States, to tax the franchise
which its corporation, the ferry company, lawfully acquired from
Indiana, and which franchise or incorporeal hereditament has its
situs, for purposes of taxation, in Indiana.
As what has been said is sufficient to dispose of the case, we
need not consider the question, arising upon the record and
urged
Page 188 U. S. 399
by counsel, whether the taxation by Kentucky of the ferry
company's Indiana franchise to transport persons and property from
Indiana to Kentucky is not, by its necessary effect, a burden on
interstate commerce forbidden by the Constitution of the United
States.
The judgment of the Court of Appeals of Kentucky is reversed,
and the cause remanded for such further proceedings as may not be
inconsistent with this opinion.
Reversed.
THE CHIEF JUSTICE and MR. JUSTICE SHIRAS dissent.
* Barb. & Carr.Stat. 1894.
"§ 4077. Every railway company, . . . and every other like
company, corporation, or association, also every other corporation,
company, or association having or exercising any special or
exclusive privilege or franchise not allowed by law to natural
persons, or performing any public service, shall, in addition to
the other taxes imposed on it by law, annually pay a tax on its
franchise to the state, and a local tax thereon to the county,
incorporated city, town, and taxing district, where its franchise
may be exercised. The auditor, treasurer and secretary of state are
hereby constituted a Board of Valuation and Assessment for fixing
the value of said franchise, except as to turnpike companies, which
are provided for in section 4095 of this article, the place or
places where such local taxes are to be paid by other corporations
on their franchise, and how apportioned, where more than one
jurisdiction is entitled to a share of such tax, shall be
determined by the Board of Valuation and Assessment, and for the
discharge of such other duties as may be imposed on them by this
act. The auditor shall be chairman of said board, and shall convene
the same from time to time, as the business of the board may
require."
"§ 4078. In order to determine the value of the franchises
mentioned in the next preceding section, the corporations,
companies, and associations mentioned in the next preceding
section, except banks and trust companies whose statements shall be
filed as hereinafter required by section 4092 of this article,
shall annually, between the 15th day of September and the 1st day
of October, make and deliver to the auditor of public accounts of
this state a statement, verified by its president, cashier,
secretary, treasurer, manager, or other chief officer or agent, in
such form as the auditor may prescribe, showing following facts,
viz.: the name and principal place of business of the corporation,
company, or association; the kind of business engaged in; the
amount of capital stock, preferred and common; the number of shares
of each; the amount of stock paid up; the par and real value
thereof; the highest price at which such stock was sold at a
bona fide sale within twelve months next before the 15th
day of September of the year in which the statement is required to
be made; the amount of surplus fund and undivided profits, and the
value of all other assets; the total amount of indebtedness as
principal; the amount of gross or net earnings or income, including
interest on investments and incomes from all other sources for
twelve months next preceding the 15th day of September of the year
in which the statement is required; the amount and kind of tangible
property in this state, and where situated, assessed, or liable to
assessment in this state, and the fair cash value thereof,
estimated at the price it would bring at a fair voluntary sale, and
such other facts as the auditor may require."
"§ 4079. Where the line or lines of any such corporation,
company, or association extend beyond the limits of the state or
county, the statement shall, in addition to the other facts
hereinbefore required, show the length of the entire lines
operated, owned, leased, or controlled in this state, and in each
county, incorporated city, town, or taxing district, and the entire
line operated, controlled, leased, or owned elsewhere. If the
corporation, company, or association be organized under the laws of
any other state or government, or organized and incorporated in
this state, but operating and conducting its business in other
states as well as in this state, the statement shall show the
following facts, in addition to the facts hereinbefore required:
the gross and net income or earnings received in this state and out
of this state, on business done in this state, and the entire gross
receipts of the corporation, company, or association in this state
and elsewhere during the twelve months next before the 15th day of
September of the year in which the assessment is required to be
made. In cases where any of the facts above required are impossible
to be answered correctly, or will not afford any valuable
information in determining the value of the franchises to be taxed,
the said board may excuse the officer from answering such
questions:
Provided, That said board, from said statement,
and from such other evidence as it may have, if such corporation,
company, or association be organized under the laws of this state,
shall fix the value of the capital stock of the corporation,
company, or association, as provided in the next succeeding §,
and from the amount thus fixed shall deduct the assessed value of
all tangible property assessed in this state, or in the counties
where situated. The remainder thus found shall be the value of its
corporate franchise subject to taxation as aforesaid."
