1. The title or caption of the act of incorporation was sufficient, for the reasons given in the Rome Railroad case, decided at the present term.
2. It seems to have been the purpose of this court to hold in 54 Ga., 423, that except as to stock issued under the amendment of 1868 authorizing the Clayton branch, the limit put by the charter of the Georgia Railroad and Banking Company upon the taxing power, extends to all the capital stock of the corporation as a railroad company, and is irrepealable. These questions were fairly involved in that case, and the adjudication of them there announced ought to be accepted as final. It does not follow, however, that the court’s attention was called to the distinction between a tax levied directly upon the stock, and a tax levied upon the property of the corporation, as to the excess in value of the property over and above the capital stock authorized by the charter and its amendments, and issued accordingly. To a kindred subject the court’s attention was called, and upon it a ruling was made, namely: that the reduced rate of the charter would be restricted to the value of the road and its necessary appurtenances, and that any surplus capital kept on hand, or any investment not strictly within the enterprise contemplated in the charter, would be taxable at the general rate. This is taking a look at the property, as distinguished from stock, and the point of view is quite proper; but to arrive at the right mode of taxing the Georgia Railroad and Banking Company under existing laws (the charter provisions included), a further comparison is to be made — the amount of the stock is to be compared with the value of the property. There is a legislative longing to tax railroad property just as other property is taxed, and this is obviously a right direction for the legislative mind to take Taxation ought to be uniform and impartial. The accident *491that capital is invested in this or that species of values ought to make no difference, except so far as the state’s autonomy is fettered by contract. Though the power of taxation is conceded to be an attribute of sovereignty, it may, in respect to a given property or subject matter, be surrendered or limited by contract. Strange as this doctrine is in itself, and strange as it will probably seem to our posterity, it is, for the present, law in these states, and the courts of this generation must administer it. The contract with the Georgia Railroad and Banking Company fixes the amount of the capital stock of the corporation, or provides for fixing it, and then stipulates that the stock shall not be taxed beyond a certain limit. By this, the state meant that so many dollars of wealth might be and remain subject to the restricted taxation; it did not mean that what that wealth might produce by way of appreciation of the property in which it was invested, or by way of accumulated profit, should also be taxed as capital, and only as capital. The language of the fifteenth section of the original charter is as follows: “The stock of the said company and its branches, shall be exempt from taxation for and during the term of seven years from and after the completion of the said railroads, or any of them ; and after that, shall be subject to a tax not exceeding one-half per cent, per annum on the net proceeds of their investments.” We have no doubt that “ one-half per cent.” means one-half of one per cent. The existing laws do not tax stock as such, but they tax property arl valorem, and they seek to tax railroad property with no discrimination for or against it. The stock of the Georgia Railroad and Banking Company, in so far as the corporation is a railroad company, (not a bank,) is subject to a restricted taxation as to all stock authorized and subscribed prior to the adoption of the Code — January 1st, 1863, and this limit in date comprehends all stock except that issued by virtue of the amendment to the charter au thorizing the Clayton branch. Now, stock and property ought to offset each other, dollar for dollar, so far as they *492both extend, pari passu; but as the excess of stock over property would not be taxed by a tax levied exclusively upon property, so a tax upon the excess of property over stock is not a tax upon the stock. The rule of strict construction should be applied in administering the provision of the charter for restricted taxation. To the extent of the stock at its nominal amount, the provision must be respected, but the excess of property over that amount represents appreciation and accumulation, not stock, and is taxable at the general legal rate. In the. second head-note, we have indicated with as much accuracy as possible the proper mode of taxing this corporation under existing laws. Though it has banking powers, the corporation is primarily and preeminently a railroad company, and its property as a bank should be estimated for taxation with its other assets. The banking powers, as now existing, seem to depend upon an act passed in 1870, and are therefore modified by the general provisions of the Code. As a bank, therefore, the corporation is not beyond the unrestricted taxing power of the state. But considered merely as a bank, its capital is nontaxable by reason of the act of 1876, which forbids any assessment whatever upon the capital of any bank, and. provides for taxing the stockholders on their shares of stock. There is a difficulty in applying this mode of taxation to a railroad company with banking powers, where the stock for banking and the stock for railroad operations are blended and consolidated in ownership, that is, where there is no separation of bank shares from railroad shares. The best solution of the difficulty seems to be to keep sight of the main characteristic of the corporation, and to treat the railroad side, (which in the case of this company predominates in so high a degree,) as swallowing up the banking side. It is really the case of a railroad company owning a bank, and not that of a separate banking corporation owning a bank. The bank assets may be treated as a mere investment of the railroad corporation to the extent of their value, and taxable the same as the railroad and its appurtenances, or as other *493property held in excess of the whole capital stock. It may be worth while to explain, that the reason why we do not think there is a limit of the restricted taxation to stock actually paid in, as we ruled there was in the case of the Rome Railroad Company, is owing to there being nothing said in the Georgia Railroad charter on the subject, in the taxation clause, and no' reference made to other legislation which embodies that limitation. In fixing the amout of the Georgia Railroad stock, the amount of stock issued and outstanding is to govern, so that it be not in excess of the amount authorized by the charter and the amendments thereto. And it is to be remembered, also, that amounts authorized since the Code went into effect are not to be counted in any estimate for restricted taxation. This results from the settled rule that restrictions are repealable if they do not ante-date the Code; and the railroad tax act of 1874 repeals whatever of exemption or restriction is repealable. We will not undertake now to determine what particular assets of the Georgia Railroad are taxable, further than we have indicated in the second head-note. Let the property of the company be treated, in the first instance, just as if it belonged to a natural person. Then, if the valuation exceeds the capital stock to which restricted taxation applies, let the excess be rated as if it belonged to a natural person. This rule is simple and easy and we suppose there will be no' serious difficulty in carrying it out. First administer the charter so far as the restricted rate goes, and then, as to the balance of the property, administer the general tax law.
3. But whether the corporation has been over-taxed or not, the court erred in the disposition made of the case. The affidavit of illegality ought to have been dismissed, for there is no law giving jurisdiction of that remedy, under the facts in the record. Affidavit of illegality is not a remedy provided by law for resisting a fi. fa. issued by the comptroller-general for the taxes of a railroad company, except where the assessment and fi. fa. are based upon a return of property made by the company for the given year. *494The statute requires a return to be made for each year; and certainly the legislature has power to exact such a return. Why should not railroad companies make, each year, the returns which the law requires them to make % What has exemption from taxation or restrictions upon the taxing power to do with the du ty of making returns ? Let the returns prescribed by statute be made, and the state can and will still abide by its obligations in respect to the imposition of taxes. ■ No company can be allowed to absolve itself from the duty of making returns. In the present instance, the comptroller-general was left to grope in the dark as to the company’s assets. The scheme of the statute is not to leave both law and fact open, but to settle the facts by a return, and then let the company raise the question of law by affidavit of illegality. There is no presumption of law, certainly none in direct opposition to the statutory requisites for a return, that the property remains the same, or of the same value, from year to year, and for every year after the first return is made. If a company wants to avail itself of a statutory remedy, it must comply with the terms laid down in the statute. The general rule is non-intervention by the courts in the collection of taxes. By special statute, railroad companies may resort to an affidavit of illegality, but the same statute requires that they shall make a return, and it points out what the return shall contain. The Georgia ■Railroad and Banking Company did not comply with this statute, and therefore it has no right to prosecute an affidavit of illegality, and the superior court of Fulton county has no power to entertain the affidavit. We accordingly reverse the judgment, with direction that the affidavits of illegality be dismissed for the want of jurisdiction in Fulton superior court, on the facts apparent in the record. ■There may.be a remedy in equity by injunction, but that question is open, no bill having been filed.
. Judgment reversed.
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