Dissenting Opinion: White, Field, Harlan, Brown, JJ. it says 'property,' 'all property,' etc., so that there might be no confusion as to what that instrument intended. Neither is there any reason to suspect that the legislature did not understand the language and meaning of the constitution when it came to frame the revenue laws of the State under it now under consideration. Neither is there reason to suspect that it did not intend and endeavor in good faith to carry into effect the intent and meaning of the constitution. So that we may safely interpret all words and phrases (of doubtful and uncertain meaning) in accordance with and so as to effectuate and carry out that intent." The statute thus construed cannot be overthrown for failure to conform to the requirements of sections 171, 172 and 174 of the state constitution. Decree affirmed. MR. JUSTICE WHITE, with whom concurred MR. JUSTICE FIELD, MR. JUSTICE HARLAN and MR. JUSTICE BROWN, dissenting. In its ultimate analysis the legal principles by which this case should, in our opinion, be controlled are those which were by us deemed decisive in Adams Express Co. v. Ohio, 165 U. S. 194, 229. It follows that the reasons for our dissent stated in that case are pertinent to this, and we reiterate them as expressing the grounds for our dissent from the conclusions. reached by the court in this case. The facts here, however, so pointedly exemplify the force of the reasons for our dissent in that case that we briefly state them. The actual value of all the tangible property owned by the express company in Kentucky was $36,614.53. This property was assessed by the local authorities for that amount and the taxes duly paid. In addition, the value of the franchise was assessed at $1,463,040, a disproportion enormously in excess of the amount imposed by the State of Ohio, great as was that disproportion. The operation of the tax is additionally illustrated by a further fact. The tax imposed in Ohio and held to be valid in Adams Express Co. v. Ohio, considered with reference to the routes Dissenting Opinion: White, Field, Harlan, Brown, JJ. travelled by the agents of the express company, was at the rate of $250 per mile, whilst in this case the tax levied is at the rate of $764 per mile. Although the fundamental legal principles which, in our opinion, should have controlled Adams Express Co. v. Ohio are the same in this case, there are yet material differences between the Kentucky and the Ohio statutes, which we think should take this case out of the ruling in the former case, even conceding that case to have been correctly decided. The tax here levied is a franchise tax. This is fully demonstrated by the dissenting opinion in Henderson Bridge Co. v. Kentucky, this day decided, ante, 155. The levy here sought to be sustained, then, is a franchise tax, assessed on a joint stock company which has no franchise, for the bill alleges that the express company is a partnership and the demurrer concedes it. Under this state of law and fact, therefore, the effect of holding the tax now in question valid, is to decide that a franchise can be taxed, when there is no franchise on which to levy the tax. This can only be escaped by contending that the right of the express company to do interstate commerce business in Kentucky, resulted from the assent of the State, and therefore the doing of such business was equivalent to accepting a franchise from the State. But to announce this proposition would overthrow the settled rule so necessary for the perpetuity of our institutions and the free intercourse between the States, that the right to transact interstate commerce business by a person or corporation is protected by the Constitution of the United States, and does not depend upon the mere grace of one of the States of the Union. In addition to the clear distinctions, already noted, between Adams Express Co. v. Ohio and this case, there are others resulting from the difference between the Ohio and the Kentucky statutes. The Ohio statute considered in Adams Express Co. v. Ohio purported only to tax the tangible property within the State, but empowered the assessing board to consider its value as augmented by the use to which such property might be put. In other words, the Ohio law, as construed by the Supreme Court of the State. taxed only tangible property Syllabus. within the State enhanced in value by intangible elements outside the State. We considered, in dissenting in the Ohio case, that this was a mere disguise, a distinction without a difference, but the court held otherwise. In this case, by the law in question, the mask is thrown off, and what we conceive to be logically the thin disguise under which the courts of Ohio supported its statute is not asserted to exist, but the Kentucky statute, in unambiguous and unmistakable language, imposes the imperative duty upon the assessing board to assess property both in and out of the State. That is to say, it leaves nothing to implication or to evasion, but declares in plain English that property in and out of the State shall be assessed. ADAMS EXPRESS COMPANY v. OHIO STATE AUDITOR. PETITION FOR REHEARING OF NO. 337 REPORTED 165 U. S. 194; AND NOS. 469, 470 AND 471, REPORTED 165 U. s. 255. The members of the court who concurred in the above named judgments, add a few observations to what has been already said. It is well settled that no State can interfere with interstate commerce through the imposition of a tax which is, in effect, a tax for the privilege of transacting such commerce; and also that such restriction upon the power of a State does not in the least degree abridge its right to tax at their full value all the instrumentalities used for such commerce. The state statutes imposing taxes upon express companies which form the subject of these suits grant no privilege of doing an express business, and contemplate only the assessment and levy of taxes upon the properties of the respective companies situated within the respective States. In the complex civilization of to-day a large portion of the wealth of a community consists of intangible property, and there is nothing in the nature of things or in the limitations of the Federal Constitution which restrains a State from taxing such intangible property at its real value. Whenever separate articles of tangible property are joined together, not simply by a unity of ownership, but in a unity of use, there is not unfrequently developed a property, intangible though it may be, which in value exceeds the aggregate of the value of the separate pieces of tangible property. Petition for Rehearing. Whatever property is worth for the purposes of income and sale, it is worth for the purposes of taxation; and if the State comprehends all property in its scheme of taxation, then the good will of an organized and established industry must be recognized as a thing of value, and taxable. The capital stock of a corporation and the shares in a joint stock company represent not only its tangible property, but also its intangible property, including therein all corporate franchises and all contracts, privileges and good will of the concern; and when, as in the case of the express company, the tangible property of the corporation is scattered through different States by means of which its business is transacted in each, the situs of this intangible property is not simply where its home office is, but is distributed wherever its tangible property is located and its work is done. No fine spun theories about situs should interfere to enable these large corporations, whose business is of necessity carried on through many States, from bearing in each State such burden of taxation as a fair distribution of the actual value of their property among those States requires. THIS was an application for leave to file a petition for a rehearing of the several cases decided February 1, 1897, under the title of Adams Express Company v. Ohio State Auditor, and reported 165 U. S. 194; and of American Express Company v. Indiana, Adams Express Company v. Indiana, and United States Express Company v. Indiana, decided February 1, 1897, and reported 165 U. S. 255. The petition was as follows: TO THE SUPREME COURT OF THE UNITED STATES: Your petitioners, the appellants in the above entitled causes, respectfully pray for an order directing a reargument of the said causes upon the following grounds: First. The total insufficiency of the argument offered by the counsel for the appellants, due to a failure on their part to anticipate the grounds which have really led to the decision of the court. Second. The extreme importance and far reaching effect of the decision which has been announced, as bearing upon some of the most fundamental principles of constitutional law. Third. Its momentous practical importance as affecting existing interests, making it wholly impossible for the appellants to continue the express business of the country under the system of taxation sanctioned by the decision, in view of Petition for Rehearing. the natural tendencies of the different States to compel contributions from that business; tendencies against which the law affords the most meagre, if any, protection. Fourth. The entire novelty of the questions discussed and of the points necessarily determined by the judgment. Fifth. The fact that under the circumstances such failure on the part of counsel is not without reasonable excuse. Sixth. That the appellants believe and are so advised by their counsel, that a further consideration of the cases and a consideration of reasons which have not heretofore, in consequence of the failure aforesaid, been stated, will lead this honorable court to a decision in favor of the appellants. Seventh. We beg finally to suggest that upon the question whether the Nichols law denies the appellants the equal protection of the laws, this court has erroneously assumed that the taxing laws of Ohio classify property of different sorts for purposes of valuation. And your petitioners respectfully ask for an attentive consideration of the paper annexed hereto, in which an attempt is made to more fully state and to support the grounds above mentioned, with such brevity, however, as the nature of this petition and the rule of the court requires, and they further pray that the above entitled cases be set down for reargument before the court upon some day by it to be appointed. And as in duty bound will ever pray. JAMES C. CARTER, LAWRENCE MAXWELL, JR., We certify that, in our opinion, the foregoing petition for rehearing is well founded. JAMES C. CARTER, LAWRENCE MAXWELL, JR., Counsel for Appellants. GROUNDS UPON WHICH THE REARGUMENT IS ASKED. First. The total insufficiency of the argument heretofore offered by counsel for the appellants due to a failure on their |