To the Senate of New Hampshire:
The undersigned have received an attested copy of a resolution adopted by your honorable body at the June session, 1889, requiring our opinions on a question raised by a claim of the Boston Maine Railroad for the repayment of a tax paid by that company under protest.
Section 5 of c. 13, General Laws, provides that no "act incorporating, chartering, or renewing the corporate powers of any railroad . . . company" shall be enrolled, or published, or have the force of law, until the payment into the state treasury of "fifty cents per thousand on the largest amount of capital authorized in said act so incorporating, chartering, or renewing said corporate powers." Chapter 304, Laws 1887, empowers the Boston Maine to buy the road, franchise, and property of the Eastern, and to increase its capital stock to such amount as may be requisite, with a proviso that no greater amount of dividends shall be paid by the Maine than the Maine and the Eastern "are allowed by law to make at the date of such purchase." The authority here given the Maine to buy the Eastern road, and to buy and exercise corporate powers previously granted to the Eastern company, with no increase or renewal of the dividend-paying franchises belonging to the two companies before the purchase, was not a creation or renewal of corporate powers within the meaning of c. 13, General Laws; and the sum of fifty cents per thousand on capital was not due from the Maine to the state. This conclusion renders it unnecessary to consider any other ground on which the Maine might put its claim.
C. DOE. W. H. H. ALLEN. ISAAC W. SMITH. LEWIS W. CLARK. I. N. BLODGETT. A. P. CARPENTER. GEO. A. BINGHAM.
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