PiNney, J.
The allegations of the complaint are to the effect that the real estate of the plaintiff, which in this case is the subject of the taxation complained of, is not a part of *592the authorized, amount at which its capital stock was fixed, and which it appears was full paid, when the corporation was organized. The capital stock was to be issued and sold in shares to subscribers, to obtain the means with which to carry on the business of banking. The capital stock of the bank, in this sense, could not be increased or diminished in .amount except in the manner provided bylaw, although the value thereof might increase or be depreciated. It is expressly averred that “ a large proportion of its surplus of $300,000, at the time of such taxation, was composed of the real estate ” in question. It is true that the pleader states, as a conclusion rather than a fact, that such real estate was “ purchased by said bank with money forming part of its capital stock,” and that it “ became and now is a part of the plaintiff’s capital stock;” but this is immediately followed by the statement that “ all of said real estate is included in the 800 shares into which said capital stock is divided.” It is in this sense only that it is claimed that its real estate forms a part of the capital stock of the bank, and is included in the 800 shares into which the capital stock has been divided, for it is further alleged that such real estate had already been taxed at its full value in the assessment of the shares of the capital stock of said bank to its ■said stockholders.
1. It is contended that to tax the bank upon the value of this real estate is, under the circumstances, double, taxation— First, in taxing the shares of its stockholders; and second, in taxing the real estate of the bank, the legal owner of it. Now, the tax on the shares of stock which are owned by the stockholders is not a tax on the capital or capital stock of the bank, nor is it a tax on the real estate of the bank. As was held in Van Allen v. Assessors, 3 Wall. 573" court="SCOTUS" date_filed="1866-03-26" href="https://app.midpage.ai/document/van-allen-v-assessors-87737?utm_source=webapp" opinion_id="87737">3 Wall. 573, and confirmed in many subsequent cases: “ The corporation is the legal owner of all the property of the bank, real and personal, and within the powers conferred upon it by the char*593ter, and for the purposes for which it was created, it can deal with the corporate property as absolutely as a private individual can deal with his own. . . ' . £ The individual members of the corporation are, no doubt, interested, in one sense, in the property of the corporation, as they may derive individual benefit from its increase, or loss from its decrease, but in no legal sense are the individual members the owners.’ The interest of the shareholder entitles him to participate in the net profits earned by the bank in the employment of its capital during the existence of its charter, in proportion to •the'number of his shares, and, upon its dissolution- and determination, to his proportion of the property of the corporation that may remain after the payment of its debts. This is a distinct, independent interest or property, held by the -shareholder like any other property that may belong to him.” Palmer v. McMahon, 133 U. S. 666; Gibbons v. Mahon, 136 U. S. 557; Bank of Commerce v. Tennessee, 161 U. S. 146. It is this interest or property which the state has made the subject of taxation against the stockholder. Laws -of 1866, oh. 102, sec. 1 (S. & B. Ann. Stats, p. 1218). The statute declares that “no tax shall be assessed upon the capital of any bank or banking association, but the stockholders in such banks and banking associations shall be assessed and taxed on the vaVue of their shares of stoclc therein, at the place where the bank or banking association is located, and' not elsewhere.” Bank stock is required to be entered •upon the assessment roll in the names of. the several owners of the shares thereof, respectively (S. & B. Ann. Stats, sec. 1044); and provision is made requiring a proper officer of the bank to deliver to the assessor a sworn statement of the names of its stockholders, the amount of stock held by each, and' the full and true value of the stock on the 1st .• of May: (S. & B. Ann. Stats, sec. 1051), in order that it may be .assessed and valued by the assessor and board of review.; By *594the provisions of the general banking law (see. 16, ch. 479, Laws of 1852), state banks had been required to pay to the state treasurer, on the 1st day of January and July in each year, a semiannual tax of three fourths of one per centum on the amount of the capital stock of such bank, and said capital stock was to be “ exempt from all other taxes, except on that portion of said capital stock which shall consist of and include the real property of such bank or banking association ; ” and the real property of all banks or banking associations was to be assessed and taxed in the city, ward, village, or town where the same was located, for all state, county; town, and corporation purposes, in the name of the bank, but the owner or holder of shares of stock in any bank or banking association was not to be taxed as an individual for such shares of stock. This general provision of the banking law for taxing state banks upon their capital stock'— that is to say, upon the fixed sum prescribed by the charter or articles of association — was held valid in State ex rel. Harney v. Hastings, 12 Wis. 596" court="Wis." date_filed="1860-06-15" href="https://app.midpage.ai/document/state-ex-rel-harney-v-hastings-6598262?utm_source=webapp" opinion_id="6598262">12 Wis. 596, and continued in force until after the organization of banks under the national banking act of 1864, when it was repealed; and subsequently the present enactment took its place, providing for the taxation of shares in state and national banks upon an equal basis.
The result of this legislation is that thereafter, instead of taxation at an arbitrary percentage upon the amount of the capital stock, or the amount paid in thereon, the law has provided for a tax upon the shares of stock of state and national banks alike upon their valuation, and has exempted all banks from a tax on their capital. The accumulated profits or surplus of a bank, over and above the amount of its capital stock paid in, are earnings derived from the use of such capital under the powers and franchises of the bank, and are liable to taxation like the property of any private *595individual in so far as it consists of funds or property subject to, or not exempt from, taxation. Tbe tax bere complained of is in no proper legal sense a tax on the capital of the bank, but on its surplus. That such surplus is taxable is a necessary result of the provision of the statute (S. & B. Ann. Stats', sec. 1034), that “ taxes shall be levied upon all property in this state, except such as is exempted therefrom.” In the case of State Bank v. Milwaukee, 18 Wis. 281" court="Wis." date_filed="1864-06-15" href="https://app.midpage.ai/document/state-bank-v-city-of-milwaukee-6599167?utm_source=webapp" opinion_id="6599167">18 Wis. 281, it was held that the accumulated profits of the bank, which had never been divided among the stockholders, but had been retained for banking purposes, are not a part of its capital stock, in such a sense as to be exempt from the general rules of taxation applicable to other taxable property. The same view is maintained in Gibbons v. Mahon, 136 U. S. 558; Shelby Co. v. Union & P. Bank, 161 U.S. 149" court="SCOTUS" date_filed="1896-03-02" href="https://app.midpage.ai/document/shelby-county-v-union--planters-bank-94371?utm_source=webapp" opinion_id="94371">161 U. S. 149.
2. The objection that the taxation complained of is double taxation, and therefore illegal, cannot be sustained. Double taxation is defined as the “ requirement that one person or known subject of taxation shall directly contribute twice to the same burden, while other subjects of taxation, belonging to the same class, are required to contribute but once.” Cooley, Taxation (2d ed.), 225. Here there is diversity of person, as well as of subject of taxation. The shares of stock are the legal property of the stockholders, and, although the value of the stock is founded upon and dependent upon the value of the property of the corporation, they are, nevertheless, a species of property altogether separate and distinct in character and ownership- from the capital or property of the bank. The shareholders, as such, are not the owners of the capital or property of the bank, the title to which is vested in the bank itself. It cannot therefore be said that the case presented is one of double taxation, either as to person or subject. State Bank v. Milwaukee, supra; Van Allen v. Assessors, 3 Wall. 573" court="SCOTUS" date_filed="1866-03-26" href="https://app.midpage.ai/document/van-allen-v-assessors-87737?utm_source=webapp" opinion_id="87737">3 Wall. 573; Porter *596v. R., R. I. & St. L. R. Co. 76 Ill. 561" court="Ill." date_filed="1875-01-15" href="https://app.midpage.ai/document/porter-v-rockford-rock-island--st-louis-railroad-6958116?utm_source=webapp" opinion_id="6958116">76 Ill. 561; Bank of Commerce v. Tennessee, 161 U. S. 146.
For these reasons, the court properly sustained the'demurrer of the defendants, and vacated the temporary injunction.
By the Gowrt.— The order of the circuit court is affirmed.