State v. Northern Central Railway Co.

44 Md. 131 | Md. | 1876

Lead Opinion

Robinson, J.,

delivered the opinion of the Court.

The Baltimore and Susquehanna Railroad Company was chartered in 1821, for the purpose of constructing a railroad from the City of Baltimore to the Susquehanna river, with a capital stock of $1,000,000, and with power to increase the stock'to $2,000,000.

By the Act of 1854, chapter 250, the stockholders of said company were authorized to unite and consolidate with “The York and Maryland Line Railroad Company,” “ The York and Cumberland Railroad Company” and “The Susquehanna Railroad Company,” corporations chartered by and lying in the State of Pennsylvania, so as to form one corporation, to be called “The Northern Central Railway Company,” on such terms and conditions, and conformably to such agreements and regulations as the said several companies might respectively determine and adopt, subject, however, to tlie following, among other conditions set forth in said Act:

That all laws made in reference to the Baltimore and Susquehanna Railroad Company, not repealed or modified by the Legislature of Maryland, should be binding and operative upon the said consolidated company, so far as its property or operations were within said State, and so far as said laws were applicable to, and consistent with, the new organization of the said consolidated company.

That the said consolidated company should have the power, from time to time, to establish its capital stock to an amount not exceeding eight millions of dollars.

That the said company should possess all the corporate powers and privileges, and be subject to all the duties and obligations, not inconsistent with the Act and its general intent, which were expressed in the charter granted to the Baltimore and Susquehanna Railroad Company, or in the supplements to that charter.

The Act further provided that it should go into effect whenever the several corporations had agreed to consolidate their several companies into one, and had agreed upon the terms and conditions of such consolidation, and had made a full report thereof, duly certified, to the Governor of Maryland, to be recorded in the office of the Secretary of State.

Rower to unite and consolidate with the Baltimore and Susquehanna Railroad Company was also granted to the three Pennsylvania companies by the Legislature of that State.

The Act of 1854 was accepted by the stockholders of the Baltimore and Susquehanna Railroad Company, and articles of union were executed, by which all the property, rights, privileges and immunities belonging to tbe said several companies, were transferred to tbe new company.

By the 20th section of the Act of 1827, ch. 72, which was the charter of the Baltimore and Susquehanna R. R. Company, it was* provided that the shares of the capital stock of the said company should be deemed and considered personal estate, and be exempt from the imposition of any tax or burthen.

It is claimed by the appellee, that as the Maryland Act of 1854 provides that the Northern Central Railway Company should possess the corporate powers and privileges granted to the Baltimore and Susquehanna Railroad Company by the Act of 1827, it follows that the capital stock which the Northern Central Railway Company was authorized to issue under the Act of 1854, is exempt from taxation ; and that inasmuch as these shares of stock represent all the property of the company, such property is in every form also exempt from taxation.

Conceding this to be true, and conceding also, that the Legislature had the power, under the Constitution of this State, to exempt the shares of stock and property of the appellee from the imposition of any tax or burthen, questions unnecessary to be decided in the view we take of this case, the question is whether the exemption thus claimed is beyond the power of the Legislature to repeal?

There is no provision in the Act of 1827 incorporating the Baltimore and Susquehanna Railroad Company, nor in the Constitution then in force in this State, nor was there any prior general law, reserving to the State the right to amend, alter or repeal the charter thus granted'- to the company. The charter must therefore be regarded as an executed contract between the State and the corporators, and within the protection of the Constitution of the United States, which ordains that no State shall pass any law impairing the obligation of contracts. Miller vs. State, 15 Wallace, 488.

So long then, as the Baltimore and Susquehanna Railroad Company existed as a corporate body, exercising the rights and privileges vested in it under its charter, the Legislature possessed no power to subject the shares of its stock to the imposition of any tax or burthen. But by the Act of 1854 the stockholders of said company were authorized to unite and consolidate with the three Pennsylvania companies, so as to form a new company, to he called the Northern Central Railway Company. This Act was accepted by the stockholders, and in pursuance of its provisions articles of union were executed. It is clear then that under the operation of this Act, and under the articles of union above referred to, the Baltimore and Susquehanna Railroad Company was by due authority of law merged in the Northern Central Railway Company. To this new company it had transferred all its rights and property — it had extinguished its capital stock — its board of directors had ceased to exist; and all its corporate powers and privileges, by the express terms of the Act of 1854, became vested in the consolidated company. The merger was complete and absolute, and the Baltimore and Susquehanna Company, as a corporation, ceased to exist. In its place, and in the place of the three Pennsylvania companies, a new corporation was created. The corporate rights and privileges formerly belonging to the Baltimore and Susquehanna Company were, it is true, vested in the new company, and the provisions of the Act of 1827, incorporating the original company, were to that extent embodied in, and re-enacted by, the Act of 1854. But the ]'ights and privileges thus conferred, became new and special grants to the Northern Central Railway Company, dating from the period when the Act of 1854 went into operation.

Other rights and privileges were also granted to the corporation thus created — the power to make and use a common seal — to elect a hoard of directors — to increase its capital stock to eight millions of dollars — to issue bonds convertible into stock, and in the language of the Act, to make suck provisions and regulations as may be necessary to create and establish said consolidated company.

In no sense then, can it be said that the appellee was created by the articles of union, executed by the respective companies.

The stockholders of the Baltimore and Susquehanna Company were authorized by the Act of 1854, to consolidate with the Pennsylvania companies, and the acceptance by them of this Act, and the execution of articles of union were conditions precedent to the incorporation of. the new company, but when these conditions were complied with, the appellee as a corporation, derived its existence, and was in terms created by the operation of the Act of 1854. Now, when this Act was passed, the Constitution of 1850, was in force in this State, which ordained:

“That corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes ; and in cases where in the judgment of the Legislature, the object of the corporation cannot be attained under general laws. All laws ahd special Acts pursuant to this section, may be altered from time to time or repealed,” &c. Sec. 47, Art. 3. The Constitutions of ■1864 and 1867, subsequently adopted in this State, each contains a similar provision.

We cannot overlook the reasons which led to the adoption of these provisions in the organic law of the State. The power of the Legislature to alter or repeal a charter unconditionally granted to a private corporation, was no longer an open question ; and it had become settled law, that unless there was a reservation either in the charter, or in a general law or the State Constitution, of the right to modify or limit the nature of the contract, the Legislature possessed no power to amend or repeal such charter^ against the consent, or without the default, of the corporation, judicially ascertained and declared. Miller vs. The State, 15 Wallace, 488.

The object of this provision in the Constitution of 1850, was to preserve to the State, control over its contracts with corporations, and to prevent the grant of corporate powers beyond the interference of the Legislature, should the public interests at any time require such interference. It constituted therefore a condition upon which every charter was granted and held, and qualified to that extent, the contract between the State and the corporators.

The appellee having derived its charter under the Act of 1854, when the Constitution of 1850, was in force, and the exemption from taxation claimed, being a part of such charter, the power of the Legislature to repeal or revoke the immunity thus granted, is, we think, too clear to be questioned. The fact that no such right was reserved in the Act of 1854, incorporating the appellee, can make no difference. The Constitution is the supreme and controlling law, and under its provisions, the right to alter, amend or repeal every charter granted by the Legislature to a private corporation is reserved as fully as if such reservation had been made in the charter itself. Miller vs. The State, 15 Wallace, 478 ; Tomlinson vs. Jessup, 15 Wallace, 457; Fletcher vs. Peck, 6 Cranch, 136; Terrett, et al. vs. Taylor, et al., 9 Cranch, 51.

To hold otherwise, would be to decide that the Legislature by omitting such a reservation, could confer a power beyond the interference of the Legislature, and thus exercise a power forbidden by the Constitution. The charter of the appellee must therefore be construed as if such reservation had been made in express terms by the Act of 1854. And if so, the case comes directly within the principle laid down in Washington County vs. Franklin Railroad Company, 34 Md., 160.

In accepting the Act of 1854, and in the execution of the articles of union, under the operation of which the Baltimore and Susquehanna Railroad Company, has merged and ceased to exist, the stockholders are presumed to have known that the corporate powers and privileges granted by that Act to the Northern Central Railway Company were subject to the provisions of section 47, Article 8, of the Constitution, and that the exemption from taxation claimed under that Act was liable at any time to he repealed by the Legislature, whenever, in its judgment, the public interests required it. Be that however as it may, it was not within the power of the Legislature under the Constitution of the State, to grant to the appellee immunity from taxation, or any other corporate privilege, beyond the power of a subsequent Legislature to repeal or revoke

This being so, the question is, whether the exemption from taxation claimed under the Act of 1854, has been repealed, and this depends upon the construction of the Acts of 1866, chap. 157, 1870, chap. 362, and 1872, chap. 234.

The Act of 1866, known as the general assessment law, provides in general terms for the taxation of all property in the State; and'repeals also, all laws exempting property from taxation.

The Act of 1870, chap. 362, provides:

“That all and every provision contained in the charter, or supplements thereto, of any- railroad company incorporated by the laws of this State, or contained in any law heretofore passed by the Legislature of this State, whereby the stock or property, real or personal, of any railroad company * * * * is exempted from taxation, he, and the same is hereby repealed.”

The Act of 1872, chap. 234, provides:

“That a State tax of one-half of one per centum, he, and the same is hereby levied annually, upon the gross receipts of all railroad companies worked by steam.”

And here we are met by the objection, that as there is no reservation in the charter of the appellee, of the right -to amend or repeal such charter, the power if it existed, was derived solely from the provisions of the Constitution of 1850, and, inasmuch as that instrument had been superseded by the Constitutions of 1864 and 1861, subsequently adopted in this State,- the power itself no longer existed.

The plain answer to this is, that the reservation under the Constitution of 1850, qualified and became part of the charter, as fully as if it had been incorporated in the Act itself. It was the condition upon which the charter was granted, and thus became part of the contract between the State and corporators. If then the power to alter or repeal the charter of the appellee was reserved to the State, as fully as if such reservation had been set forth in express terms in the Act of incorporation, the right to exercise this power, could not in any manner be affected by the adoption of the Constitutions of 1864 and 1861.

We come then to the question as to the effect and operation of the Acts of 1866 and 1810 and 1812.

It is unnecessary to review the many cases in which Courts have considered how far, and under what circumstances, a subsequent general Act will be held to operate as a repeal of a prior private Act. As a general rule, it may be admitted, that a general Act is not to be construed to repeal a previous particular Act, unless there is some express reference to the previous Act, or unless there is a necessary inconsistency in the two Acts. Where, however, the provisions of a general Act are entirely inconsistent and irreconcilable with the provisions of a prior private Act, the former must necessarily operate as a repeal of the latter, because it is impossible for the two Acts to stand together. Great Central Gas Consumers’ Co. vs. Clarke, 103 E. C. L., 812, and 106 E. C. L. Rep., 837; Queen vs. Champneys, 6 Com. Pleas, L. R., 393 ; Canal Company vs. Railroad Company, 4 G. & J , 112 ; Mayor of Cumberland vs. Magruder, 34 Md., 386.

In such a case, the intention of the Legislature, that the latter Act should repeal the former, appears by necessary implication In re London & Eastern Banking Corporation, 4 Kay. & J., 286 ; Thorpe vs. Adams, 6 Com. Pleas, L. R., 123.

Now it must be conceded, that the provisions of the several Acts above referred to, are repugnant to, and inconsistent with, the continuance of the exemption claimed by the appellee under the Act of 1854.

Not only does the Act of 1866, subject to taxation all property in the State, and repeal in general terms all exemptions heretofore granted, but the Act of 1870, ch. 362, provides that all and any provision contained in the charter, or supplements thereto, of any railroad:] company, whereby its stock or property is exempted from taxation, he, and the same is hereby repealed ; and by the 2nd section, such stock and property is subjected to taxation, for State,‘county and municipal purposes, in the same manner as the stock and property of other corporations.

The intention of the Legislature to subject all property in the State to taxation, and to repeal all exemptions granted to railroad companies, is thus expressed in language, plain and unambiguous, and the effect and operation of these Acts can admit of hut one construction.

The provisions of these Acts are repugnant to, and inconsistent with, the exemption from taxation granted to the appellee by the Act of 1854, and as these several Acts cannot stand together, the former must he construed as a repeal of the particular Act, under which the immunity now claimed by the appellee is derived.

But, admitting the Legislature had the power under sec. 47, Article 3 of the Constitution, to repeal the exemption granted to the appellee ; and that the Acts referred to, operated as a repeal of such exemption, it is contended that the tax imposed by the Act of 1872, ch. 234, on the gross receipts of the company, is in conflict with Article 15 of the Bill of Rights which declares

“ That every person in the State, or person holding property therein, ought to contribute his proportion of public taxes for the support of the Government, according to his actual worth in real or personal property.”

(Decided. 2nd March, 1876.)

In the case of the State vs. The Cumberland & Pennsylvania Railroad Company, 40 Md., 22, it was held that the restriction imposed by this Article of the Bill of Eights, was intended to prevent an arbitrary taxation of property according to kind and quality, without regard to value; and that under it, all taxation laid on property, must be uniform and equal. Giving full force to the construction thus placed upon the Bill of Rights, it is sufficient to say, there is nothing in the record before us, to show that the tax imposed by the Act of 1872, is unequal or unjust, or that it subjects in any manner the property of the appellee to taxation, not equally borne by other property in the State.

Being of opinion that the tax imposed by the Act of 1872, upon the gross receipts of the company is a valid tax, it is unnecessary to decide whether the exemption of the shares of stock, exempted also every species of property belonging to the appellee. In regard to this question, wearenot to be understood as expressing any opinion.

The Court erred therefore in granting the first and second prayers of the appellee, and in refusing the first and second prayers of the appellant. The several propositions presented by the other prayers of the appellant, it becomes unnecessary for us to consider.

Judgment reversed, and new trial awarded.

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Dissenting Opinion

Alvey, J.,

filed the following dissenting opinion:

As I am not able to agree to the opinion that has been filed in this case, I deem it proper to state the grounds of myr dissent.

If the question here involved were now for the first time presented for determination, I should have no hesitation in declaring that it is not within the power of the Legislature so to alienate the sovereign right of taxation as to hind and conclude succeeding Legislatures, and that any contract to that effect would be void. No right, of all the sovereign rights of the State, is more essential, and, indeed, indispensable to the very existence and well being of the State, than that of taxation, and such right is a sacred trust in the hands of the Legislature, not to he abandoned or bartered away, at its discretion, under any circumstances. Especially should I so declare, in view of the 15th Article of the Bill of Rights of this State, in force since 1776, which declares that “every person in the State, or person holding property therein, ought to contribute his proportion of public taxes for the support of the Government, according to his actual worth in real or personal property.” This is a mandatory rule, and should never have been disregarded. It should, as I think, have been accepted as a constitutional restriction upon the Legislature against granting exemptions or immunities from taxation in favor of some to the prejudice of the rest of the community. But, unfortunately, the long established practice, and the repeated decisions of our predecessors, have so far fixed the construction, and established the right in the Legislature, to grant exemptions from taxation, that it cannot now he approached as a question open for discussion. We must therefore take the law as we find it settled, and apply it to cases as they arise, without regard to what our opinions would be if not controlled by authority.

The record before us presents this case : The Baltimore and Susquehanna Railroad Company was chartered by the State in 1827, to construct a road from the City of Baltimore to a point on the Susquehanna river. The charter was accepted, the company organized, and the road constructed, and which was operated under the charter until 1854. The capital stock of the company was $1,000,000, divided into 20,000 shares of $50 each, with power to increase the capital stock to $2,000,000. In the Act of incorporation is the following provision: “The said road or roads, with all their works, improvements and profits, and all the machinery of transportation used on said roads, are hereby vested in the said company incorporated by this Act, and their successors forever; and the shares of the capital stock of the said company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burthen by the State’s assenting to this law.”

By the Act of the Legislature of 1854, ch. 250, the stockholders of the Baltimore and Susquehanna Railroad Company were authorized to unite and consolidate their company or corporation with three other railroad companies, all incorporated by the State of Pennsylvania, and whose roads were exclusively within that State, so as to form and constitute one company or corporation, to he called the Northern Central Railway Company, on such terms and conditions, and conformably to such agreements and regulations as the said several companies should respectively determine and adopt, subject to certain express conditions prescribed in the Act. One of the conditions prescribed by the Act was, that the debts and liabilities of the Baltimore and Susquehanna Railroad Company should continue to hind the company and its property as fully as before the consolidation, unless they were assumed by the consolidated company. It was also provided, among other things, that the consolidated company should possess all the corporate powers and privileges, and he subject to all the duties and obligations not inconsistent with the Act, which were expressed in the charter theretofore granted to the Baltimore and Susquehanna Railroad Company, and its supplements. In pursuance of this Act, and corresponding Acts of the Legislature of Pennsylvania, conferring authority on the three corporations of that State, articles of union and consolidation were agreed on; and, among other things, it was agreed and stipulated among the parties to the compact, that all the estate, real, personal and mixed, and all the rights, privileges, advantages and immunities belonging to each of the said corporations, should become and be vested in the body corporate formed by the consolidation. And further, that in consideration of such transfers to the consolidated company, that company assumed upon itself and became bound and liable for all the debts and liabilities of the several companies composing the consolidated company, including the debt of $850,000 of the Baltimore and Susquehanna R. Company to the Mayor and City Council of Baltimore, and interest thereon. In addition to this, the consolidated company was required to assume, for and on account of the pre-existing liabilities of the Baltimore and Susquehanna R. Company, an obligation to pay to the State of Maryland the yearly sum of $90,000, extinguishable at any time within ten years thereafter, upon the full payment of $1,500,000, with all interest accrued ; and to secure which sum to the State a mortgage was required, and was given, covering the entire road from Baltimore City to Sunbury, in Pennsylvania. Act 1854, ch. 260 ; State vs. Northern Central R. Co., 18 Md., 198.

The articles of union fixed the equivalent values of stock held by the stockholders in the several corporations uniting, and, by the 5th Article, it was agreed there should be issued to the private stockholders of the Baltimore and Susquehanna Railroad Company, certificates for two shares of the capital stock of the consolidated company, “for each one share held by each of said private stockholders respectively and that there should be issued and delivered to the State of Maryland, and to the City of Baltimore, each four thousand shares of the capital stock of such consolidated company; “the said several allotments of stock to the private stockholders, and to the State of Maryland, and the City of Baltimore, to be delivered in lieu of the stock held by them respectively in the Baltimore and Susquehanna Railroad Company,” etc. It is clear, therefore, that the certificates of stock issued by the consolidated company were simply substitutional for those issued by the original company, and that the shares represented the interest only that had been acquired by the original subscription, and are, consequently, held in respect to the capita] stock transferred by the original company to the consolidated company.

The consolidated company was organized in 1854, and has been in operation ever since ; and the State authorities appear to have assumed that both the stock and the property of the company were exempt from all taxation, for it was not until recently, under the Acts of 1872, ch. 234, and 1874, ch. 408, that any attempt lias been made to force the company to pay taxes either upon its stock or property. The present proceeding has been taken, under the Acts to which I have referred, to collect of the defendant a tax of one-half of one per cent, on its gross receipts on that part of the road lying within this State, and which formerly belonged to the Baltimore and Susquehanna R. Company.

This claim of the State to tax the gross receipts of the company is resisted by the latter, upon the ground that it stands in the place of the Baltimore and Susquehanna R. Company, and possesses all the powers, rights, privileges, and immunities held and enjoyed by that company before the consolidation, in that portion of the road lying within the State of Maryland ; and that, as by the charter of the original company, all the shares of the capital stock were exempt from the imposition of any tax or bur-then, the same exemption extends to the consolidated company, as to the road within the State, and embraces the property sought to be taxed, as well as the shares of stock issued in exchange for those issued by the Baltimore and Susquehanna B. Company. This claim to exemption is denied by the State, upon the grounds, 1st, that the present defendant was created a new corporation by virtue of the Act of 1854, and that it was under that Act alone, that it derived all its franchises, rights, privileges and immunities; and as by the Constitution of 1850, the Legislature could create no corporation by special Act except on condition that it should be subject to change, alteration or repeal, it follows that it was competent to the Legislature to impose the tax sought to be enforced. And, 2ndly, that even if the shares of the capital stock of the defendant be exenqot, the convpany can claim no exemption from taxation of its corporate property, through the exemption of its stock.

In neither of these positions taken for the State can I concur.

As to the first, that the defendant was, to al-1 intents and purposes, created a new corporation by, and derived all its powers, rights, privileges and immunities from, the Act of 1854, and is therefore subject to any tax that the Legislature may think proper to impose, I think is not sustainable either upon reason or authority.

It must be observed, that the corporations consolidating did not propose to the Legislature to surrender all their franchises, powers, rights, privileges and immunities to the State, to be disposed of as it might think proper ; nor did the Legislature propose to release and discharge them from their duties and obligations. It was simply proposed by the companies, with the sanction and authority of the State, to unite and consolidate themselves, with all their property, franchises, rights, powers, privileges and immunities, under a new organization, and the Legislature was appealed to for authority thus to unite and combine, to accomplish the objects of their original charter. This consolidation when formed resulted in a new corporate body, as matter of convenience as well as of necessity. But it did not follow that the original corporations were all dissolved, and that their franchises, powers and privileges reverted to the States granting their charters. It is manifest, both from the Act of 1854, and the articles of union and consolidation, that such was not the intention, and neither the State nor the companies ever supposed for a moment, that there was anything more in the Act of 1854, than an authority to unite and consolidate existing corporations on certain conditions; the corporations in no manner being required to abandon or surrender their existing franchises, privileges and immunities. The inducement to the consolidation was the existing rights, privileges and immunities, held by the several corporations consolidating, and with these it was neither within the power, nor was it the purpose, of the Legislature to interfere. It was not the Act of 1854, that produced the consolidation, but it was the articles of union agreed on by the corporations themselves, under the authority of the Act, as the means the better to accomplish the objects for which their several charters were granted. The separate organizations and control were surrendered to the new organization, and became merged therein; but in doing that, it was required that the consolidated company should “ bring its organization into agreement anti consistency with the terms and conditions of the charters of the several companies, of which the said consolidated company shall he composed.” The charters were not only subsisting, but by the express terms of the Act of 1854, all the laws in reference to the Baltimore and Susquehanna R. Company, were made binding and operative upon the consolidated company, so far as its property or its operations might be within the jurisdiction of this State.

In this view of the subject, I cannot resist the conviction, that the case falls exactly within the reason and principle of the case of the Philadelphia, Wilmington and Baltimore Railroad Company vs. Maryland, 10 How., 376. In that case, the railroad company mentioned was a corporation composed of several railroad companies which had been previously chartered by the States of Maryland, Delaware and Pennsylvania; and which, by corresponding laws of the respective States, were united together, and formed one corporation under the name and style just mentioned. And in determining upon the rights that this consolidated company acquired under the Act authorizing the consolidation, Chief Justice Taney, speaking for the Court, said : “Now, as these companies held their corporate privileges under different charters, the evident meaning of this provision is, that whatever privileges and advantages either of them possessed, should in like manner he held and possessed by the new company, to the extent of the road they had respectively occupied before the union ; that it should stand in their place, and possess the power, rights and privileges they had severally enjoyed in the portions of the road which had previously belonged to them. And this intention is made still more evident by the fourth section of the law, which makes the new corporation responsible for the contracts, debts, obliga-, tions, engagements and liabilities at law or in equity of the several companies, and declares that it shall hold and he entitled to' all the estate, real, personal and mixed, &c. belonging to or due to the several companies.” The Act authorizing the consolidation in that case, was very similar in substance to the one under which the consolidation of the companies in this case took place. And in the more recent case, involving a similar question, the same learned tribunal has declared, that “The keeping alive of the rights and privileges of the old company, and transferring them to the new company in connection with the property, indicates the legislative intent, that such property was to he holden in the same manner and subject to the same rights as before. The owners of the property were to lose no rights by the transfer, nor was the public-to loso any rights thereby.” Tomlinson vs. Branch, 15 Wall., 460, 465. The same principiéis fully stated and applied in the Delaware Railroad Tax Case, 18 Wall., 206.

If, then, the rights, privileges and immunities of the Baltimore and Susquehanna Railroad Company were not surrendered or extinguished, hut wore kept alive, and transferred to and vested in the consolidated company, as they were originally granted, to he exercised and enjoyed as before the consolidation, it follows that the exemption from taxation, being one of the privileges or immunities to which the original company was entitled under its charter, adhered and passed as incident to its stock or property, and that such exemption was in no manner rendered subject to legislative control by the Act of 1854. By the transfer authorized by that Act and made by the articles of union and consolidation, the franchises, rights, privileges and immunities previously granted, and which were, by the well’ established law at the time, beyond legislative control, became vested in the consolidated company, not by grant of the State, but under the articles of union, and consequently were not brought within the provision of the Constitution of 1850. The most that the State could claim to clo under the constitutional provision, would he either to repeal or modify the Act of 1854 ; but by neither a repeal of nor alteration in that Act could, the Legislature destroy or impair the original franchises, rights, privileges or immunities granted to the Baltimore and Susquehanna Railroad Company, and which are secured under the Constitution of the United States.

As opposed to this view of the subject, the case of the Commissioners of Washington County vs. Franklin R. Co., 34 Md., 159, is relied on. But I am at a loss to perceive how that case can be relied on to support the position of the State in this case. There the original corporation had failed to complete its work, and had become dormant and defunct; and long after it had ceased to operate its road, and after the road had gone into dilapidation and ruin, it was sold by trustees for the benefit of creditors. To enable the purchaser to re-establish the road, and to extend it in a different direction from that designated in the original charter, application was made to the Legislature for the Act of 1856, ch. 70. That Act is a re-charter,- or, as determined by this Court, in 34 Md., 162, a new charter, from which the defendant in that case derived its-name and existence. And there, by express terms of the Act itself, power was reserved to the Legislature to alter, amend or repeal .the Act, and to loithdrdio and abrogate all the rights, privileges and franchises vested in the company; and, of course, by accepting the Act the corporators became at once bound by the terms and condition upon which they derived their rights and privileges. I therefore fail to discover the slightest analogy of that case to the present.

Taking it then to be clear that the right of exemption from taxation to which the Baltimore and Susquehanna R. Company was entitled, was transferred to the consolidated company, and remained with the latter company equally as with the first, beyond legislative interference or withdrawal, the next question is, whether the shares of the capital stock of a joint stock corporation, such as the defendant in this case, do not represent all the property of the corporation ; and where all the shares of the capital stock are exempt from taxation, whether such exemption does not extend to and embrace all the corporate property ? Or, to state the question in a different form, whether, if the shares of the capital stock were not exempted, it would be possible to tax the shares eo nomine, and, at the same time, and for the same purpose, to tax the corporate property, without substantially imposing a double tax?

In this State, these questions have been repeatedly decided, and it has.been uniformly held, that the property of the corporation is represented by the stock ; that the taxing of one exempts the other, and that the exemption of one is the exemption of both, unless the exemption be made on the ground of selection, simply to show which is intended to be taxed to the exclusion of the other. It was so decided in the Tax Cases, 12 Gill & John., 117, and in the cases of Gordon vs. City of Baltimore, 5 Gill, 231, and the City of Baltimore vs. Balto. & Ohio R. Co., 6 Gill, 288.

Nor can I perceive the supposed error in the reasoning by which such a conclusion was reached.

It is said that, in one aspect, the share of a stockholder is something different from the capital stock of the company ; the latter being the property of the corporation, while the former is the individual interest of the stockholder, constituting his right to a proportional part of the dividends when declared, and to a proportional part of the effects of the corporation when dissolved, after payment of its debts. The Delaware Railroad Tax Case, 18 Wall., 206, 230. This is certainly the true technical aspect of the relative rights of the corporation, as a legal entity, and the shareholder of its stock. But the joint capital stock is made up of the money subscribed by individual corporators, and is intrusted to the corporation to be used and invested for their benefit.' If it be invested in tangible property, snch as a road-bed’, rolling-stock, depots, and other appendages of a railroad, these are but the means employed to accomplish the end in view, that is, the realization of a surplus profit from the use and disposal of the capital subscribed for the individual stockholders. The capital stock, therefore, of the corporation is the whole undivided fund subscribed or paid in by the shareholders, the legal right to which is vested 'n the corporation, to be used and managed in trust for the benefit of the corporators. The value of the shares of stock represents not only the franchise, but the specific articles of the corporate property of the company ; the real value of the stock always depending on the condition of the corporation. If there is an undivided surplus, that, we know, will always enhance the market value of the stock. Of this, many illustrations might he cited. This, in my opinion, is not only the correct view of the subject, hut is, I think, the one generally taken hy the authorities, even those relied on hy the State. Bligh vs. Brent, 2 You. & Coll., 268, 294. That the corporation holds its property and franchises in trust for its shareholders, is a proposition fully sustained hy the case of Dodge vs. Woolsey, 18 Sow., 331; and, indeed, the clear logical deduction from that case would seem to be conclusive of the question under consideration. In that case, a bill in equity was filed hy a stockholder of a bank against th'e directors, and the tax collector of a tax assessed upon the assets and property of the banlc, to restrain the collection of the tax, because of its unconstitutionality, upon the distinct ground, that such tax lessened the value of his stock and diminished the dividends that he would otherwise receive. And it was distinctly held, that a Court of equity would exercise its jurisdiction over corporations and those intrusted with the administration of their affairs, at the instance of a stockholder, to prevent any misapplication of the capital or profits, which might result in lessening the dividends of stockholders, or the value of their shares; and that, therefore, where the directors of the bank refused to take the proper measures to resist the collection of a tax, imposed upon the property of the bank in violation of its charter, such refusal amounted to a breach of trust, and gave the shareholder a right to invoke the-aid of a Court of equity for his protection, which was fully afforded in that case.

There can be no doubt of the right of the State, where there is no exemption, to make its election, to tax either the shares of the stock in the hands of the shareholders, the capital stock in the aggregate to the corporation, or tlie specific real atid personal property held by the latter ; but it cannot tax in more than one of these modes at the same time, and for the same purpose. To do so would be to impose a double tax.

This principle is well illustrated in two cases, to which I will refer. The first is that of the Boston Water Power Co. vs. City of Boston, 9 Metc., 199, in which it was held by the Supreme Court of Massachusetts, that the corporation ivas not liable to he taxed for its personal estate or income, inasmuch as the whole value of its personal property was included in the shares of the stock, and, as such, was liable to he taxed to the holders of the shares eo nomine. And the second case is that of Smith vs. Burley, 9 N. H., 423, where, by law, the property- of corporations being made taxable to the corporation, in the town where the property was situated, it was held that there was no authority to tax the stock in corporations to the owners of the shares, though living in a different town from that where the property was located ; and it was declared by the Court that a taxation of the shares at their appraised value, “would in fact be a double taxation, once to the corporation itself, and again to the corporators, which would he unjust, oppressive and unconstitutional.” This principle is fully and clearly embodied in our own decisions to which I have referred, and especially the cases in 5 Gill, 231, and 6 Gill, 288, and upon these I mainly rely.

That the tax imposed upon the gross receipts of the road operates as a burthen upon the stock of the company, can require no argument to prove. It lessens the value of the stock, and diminishes the dividends that would otherwise he declared. It can make no sort of difference, as to the principle involved, if the shares of stock receive dividends at all, though there would be a difference in amounts, whether the tax be laid on the gross receipts, the net receipts, or the dividend fund before or after dividends declared, or upon the dividends specifically as apportioned, to each share of stock. In either case it is a burthen'upon the stock, as it subtracts from its earnings and lessens its value. The tax is only the more onerous by being imposed upon the gross receipts. See case of Iron City Bank vs. Pittsburgh, 37 Penn. St., 340, and also State vs. Hood, 15 Rich. Law, 177.

Without extending this opinion to greater length, it is sufficient for me to say that I fully concur in the conclusions arrived at in the very clear and able opinion of the learned Judge of the Superior Court, and I think his judgment ought to be affirmed.

Case Details

Case Name: State v. Northern Central Railway Co.

Court Name: Court of Appeals of Maryland

Date Published: Mar 2, 1876

Citation: 44 Md. 131

Court Abbreviation: Md.