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cions": Iron Ship etc. Works v. Nuttall, 119 Pa. St. 149; Shortel v. St. Joseph, 104 Mo. 114; 24 Am. St. Rep. 317.

"If, therefore, the master orders the servant into a situation of danger, and he obeys, and is thereby injured, the law will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even when, like the servant, he was not entirely free to choose. The same rule has been applied, and with sound reason, where the person injured was ordered into a service of peculiar danger, such as he did not undertake to perform, by another servant standing toward him in the relation of superior or vice-principal, and if he obeys such an order and is injured he may recover damages; the law will not declare his act of obedience negligence per se, but will leave it to the jury to say whether he ought to obey or not": Thompson on Negligence, 975. "Where there is any doubt whether the employee was acquainted, or ought to have been acquainted, with the risk the determination of the question is necessarily with the jury": Rummell v. Dilworth, 111 Pa. St. 343. The foregoing principles of law are directly applicable to the facts of this Of the instructions given by the court it is enough to say that they correctly state the law, and there is nothing in them of which the appellant can complain. Our judgment is to affirm the judgment of the circuit court of Carroll county.

case.

Judgment affirmed.

MASTER AND Servant-AssumPTION OF RISKS-UNUSUAL OR INCREASED DANGER.-A servant does not assume the risk of an unusual and extraor. dinary hazard not contemplated in his employment: Colorado etc. Ry. Co. v. Naylon, 17 Col 501; 31 Am. St. Rep. 335, and note; Louisville etc. Ry. Co. ▼. Hanning, 131 Ind. 528; 31 Am. St. Rep. 443, and note, with the cases collected; Libby v. Scherman, 146 Ill. 540; 37 Am. St. Rep. 191, and note. An employee, when he enters upon his service, assumes the ordinary risks incident thereto, and also the extraordinary risks of which he has notice, or of which, in the usual exercise of his faculties, he ought to have notice: Boss v. Northern Pac. R. R. Co., 2 N. Dak. 128; 33 Am. St. Rep. 756, and note.

COMMONWEALTH V. CHARLOTTESVILLE PERPETUAL BUILDING AND LOAN COMPANY.

[90 VIRGINIA, 790.]

TAXATION OF SHARES OF CORPORATE STOCK is not a tax on the capital stock of the corporation, as they represent different property interests, are distinct subjects of taxation, and the taxation of both is not double taxation.

TAXATION OF SHARES OF STOCK AND OF CAPITAL OF CORPORATIONS. —A statute taxing the "capital including money, credits, or other thing invested," and "the value of all capital of incorporated joint stock companies not otherwise taxed," authorizes the taxation, both of the capital stock not otherwise taxed and the shares of stock in such companies, held by resident and nonresident shareholders.

APPEAL from a judgment correcting certain alleged erroneous assessments of taxes, and refunding certain taxes alleged to have been illegally exacted on the capital stock of an unincorporated joint stock company.

R. T. Scott, attorney general, for the appellant.

G. Perkins, for the appellee.

791 LEWIS, P. The question to be determined is, whether the capital stock of the appellee, the Charlottesville Perpetual Building and Loan Company, an incorporated joint stock company, is taxed by the third subdivision of the eighth section of the revenue law of 1890, or whether, if it is taxed at all, the tax thereon is included in the tax imposed on the shares in the hands of the stockholders by the second subdivision of the same section. These subsections, upon the construction of which the case turns, are as follows, to wit:

"2. He [the commissioner] shall ascertain from each person in his district, city, or town the value of capital, including moneys, credits, or other thing remaining invested, whether said investment was made originally in this or any other state or country, and the value of all capital loaned, used, or employed in business out of this state by himself, his agent, or other person for him.

"3. He shall ascertain the value of all capital of incorporated joint stock companies not otherwise taxed; but real estate belonging to such company shall not be held to be capital, but shall be listed and taxed as property, and not as capital": Acts 1889-90, p. 201.

The court below held that subsection No. 2 taxes the shares of a joint stock company in the hands of the stockholders,

because they are investments within the meaning of the statute; 792 and, further, that as the aggregate of the shares represents the corporate assets of every description, the capital of the company is not to be listed under the third subsection, because it is otherwise taxed, viz., by the preceding subsection.

We are unable to concur in this view. We agree that while shares are not taxed eo nomine, they are embraced in the second subsection, for the reason given by the corporation court. But a tax on the shares is not a tax on the capital. The two are very different things. The capital or capital stock belongs to the corporation, the shares to individuals; and being different property interests, and consequently distinct subjects of taxation, the better opinion is that taxing both is not double taxation: Burroughs on Taxation, 170; State Bank v. City of Richmond, 79 Va. 113; Farrington v. Tennessee, 95 U. S. 679.

That a tax on the shares is not a tax on the capital stock is well illustrated by a number of cases in the supreme court of the United States, holding that while the shares of national banks are taxable by the states, their capital invested in United States securities is not: Van Allen v. The Assessors, 3 Wall. 573; National Bank v. Commonwealth, 9 Wall. 353; Tennessee v. Whitworth, 117 U. S. 129, and cases cited.

Now, it is not only to be presumed that the difference between the capital and shares, as recognized in these decisions and in all the authorities on the subject, was known to the legislature, but the fact appears affirmatively from the seventeenth section of the statute, which exempts from taxation the capital of banking associations, and taxes the shares of stock to the stockholders. Stress, however, was laid in the argument at the bar on the fact that the term "capital" is used as well in the second as in the third subsection above quoted. But it is a mistake to suppose that it is used synonymously in both. In the second it signifies money or other thing invested, and therefore includes, as we have said, shares of stock in the hands of the stockholder; whereas in the third it signifies the capital stock of 793 the company; that is, the aggregate of the mutual subscriptions of the stockholders, paid in as the basis of the business of the concern, and which belongs to the company. This is apparent from the language of the statute.

Moreover, had the legislature intended to tax the capital

of joint stock companies to the stockholders its intention surely would have been unmistakably expressed; and if such was the intention in enacting the second subsection, why, so far as the question involved in the present case is concerned, was the third enacted at all?

The appellee's answer to this is rather fanciful than sound. The argument is that as the latter subsection speaks of capital "not otherwise taxed," its purpose is to tax the capital merely to the extent that the holdings of nonresident or otherwise inaccessible stockholders cannot be reached. But there is no just ground for this contention. The statute, if it were susceptible of such a construction, would indeed be an anomaly. It would, moreover, be unconstitutional, since to collect of A and B the tax on the shares held by them, respectively, and to make up for what cannot be collected of C, a nonresident stockholder, by a tax on the capital of the company, would be in violation of the constitutional requirement that taxation shall be equal and uniform.

It is contended, also, that in no other way can effect be given to the words "not otherwise taxed" than by holding that the capital stock of joint stock companies was intended to be embraced in the second subsection, as there is no other law taxing it. It may be, however, that there are some companies in the state whose capital stock, by their charters or other special provision, is taxed differently, though we are not advised that there are any such. The provision, moreover, of the third subsection is a general one, which would adapt itself to any future legislation on the subject. But be that as it may, the point is not a controlling one in the case, because only by ignoring the distinction between capital stock and capital invested 794 in shares of stock, which was evidently in the mind of the legislature when the statute was passed, can the case be brought within the second subsection, or taken out of the operation of the third.

The judgment of the corporation court must therefore be reversed, and such order entered here as that court ought to have entered.

Judgment reversed.

TAXATION OF SHARES OF CORPORATE STOCK.-Stockholders in a moneyed corporation are liable to taxation on their shares although the capital stock has also paid a tax: Memphis v. Ensley, 6 Baxt. 553; 32 Am. Rep. 532, and note. The stock of a corporation may be taxed to the owner independently of taxation upon the corporate franchise and property: Belo v. Commissioners,

82 N. C. 415; 33 Am. Rep. 688. Shares in corporations represent the capital stock. If the capital stock is taxed, the shares ought not to be; and if the ares are taxed the capital stock ought to be exempt. If both are taxed there would be double taxation: Board of Commrs. v. Davis, 6 Mont. 306, 313.

FARINHOLT V. LUCKHARD.

[90 VIRGINIA, 936.]

EXEMPTIONS-LABORING MAN, WHO IS.-A United States mail carrier is a "laboring person" within the meaning of a constitutional provision that the homestead exemption of a debtor shall not extend to any execution, order, or other process issued on any demand "for services rendered by a laboring person or a mechanic."

APPEAL from an order dissolving an injunction. Section 1 of article 2 of the constitution of Virginia reads as follows: SECTION 1. Every householder or head of a family shall be entitled, in addition to the articles now exempt from levy or distress for rent, to hold exempt from levy, seizure, garnishiment or sale, under any execution, order, or other process, issued on any demand for any debt heretofore or hereafter contracted, his real or personal property, or either, including money and debts due him, whether heretofore or hereafter acquired or contracted, to the value of not exceeding two thousand dollars to be selected by him; provided, that such exemption shall not extend to any execution, order, or other process issued on any demand. . . . for services rendered by a laboring person or a mechanic."

936 HINTON, J. The bill in this case alleges that the plaintiff, D. A. Farinholt, in August, 1875, entered into a contract with one Hardin A. Luck hard for the purpose of transporting the United States mail from West Point to Gloucester courthouse. That by this contract Luckhard obligated himself to assign and transfer all orders and warrants that he should receive to the plaintiff. It charges that Luckhard, in violation of his contract, had assigned one of said warrants to H. R. Pollard to secure the sum of sixty-five dollars, but that there was a balance of seventy-three dollars remaining in the hands of the assignee to which the plaintiff was entitled, and that Luckhard is indebted to the plaintiff in an amount much 937 larger than the amount now in the hands of said Pollard. It then charges that Luckhard is insolvent and asks that the assignee, Pollard, may be enjoined and

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