(dissenting):
This relator’s road was constructed under the Bapid Transit Act (Laws of '1891,j chap. 4), as amended by chapter 752 of the Laws of 1894, chapter 729 of the Laws of 1896^ and chapter 616 of . the Laws of 1900 and other statutes. Section 35 of the act, added in 1894, as amended in 1900, reads:. .
“§ 35. The equipment to bé supplied by the person, firm or corporation. operating any such road, shall include all roiling■ stock, motors, boilers, engines, Wires, ways, conduits and • mechanisms, machinery, -tools, implements and devices of every nature whatsoever used for the generation or transmission of motive power and including all power house's, and all' apparatus and• all devices for signaling and ventilation. Such person’, firm or. corporation shall be exempt from taxation .in respect to his, their or its interest under said contract and in respect to the rolling stock and all other equipment df said road;, but this exemption shall not extend to any real property which may be Owned oremplóyed by said person, firm or corporation in connection with the said road.” .'
This section has been since amended by chapter 599' of the Laws of 1905, chapter 472 of the Laws of 1906, and chapter 498 of. the Laws of T909, but the repeal of the exemption by these amendments does not seem to apply to this relator.' (See People ex rel. Interborough Rapid Transit Co. v. Tax Comrs., 126 App. Div. 610; affd., 195 N. Y. 618.)
The question here for'determination is not, as contended by the learned Attorney-General, whether exempt property may be made-the basis of an estimate of a franchise «tax. That question has been conclusively settled in the. courts of this State and of the United States. The • ultimate fact which we here must ascertain is the intention óf the Legislature in passing this section'of the Bapid Transit Act. From ’what taxes was it intended to give immunity?
While it is undoubtedly true that á statute of exemption must be construed strictly, there are other rules of construction which must .also be considered in construing this statute, which has become a contract between the State and this relator. First. This language was chosen by the State itself) and as the State dictated its form it should be bound by what at least is fairly implied" therefrom. ’ "(Imperial *617Shale Brick Co. v. Jewett, 169 N. Y. 143.) Again: “ Where the terms of a promise admit of more senses than one, it is to be interpreted in the sense in which the promisor had reason to suppose it was understood by the promisee.” (White v. Hoyt, 73 N. Y. 505.) With these rules of construction in mind let us look for a moment to the history of this legislation. The problem of transit facilities in New York city had become a most serious one. Greater facilities were imperatively demanded, and demanded speedily. Eoads had been constructed upon the surface of the streets and above the streets. The only avenue of relief seemed to be subway construction. But that construction required large amounts of money. The franchise was to be sold at public auction. It may fairly be assumed that for the purpose of making this franchise more attractive, and for the purpose of inducing investors to bid therefor, this immunity from taxation was given. If this be the purpose of the enactment, it should be construed as it would be fairly understood by intending purchasers, and not as a deception and a trap. Before this time it had become a part of the policy of the State to tax franchises of corporations. If it had been intended in this act to reserve the right to the State to tax this franchise, in fairness to the investors whose bids were sought, that should have been stated in this statute. It is a,)so significant that by the terms of the statute the property of tlie company succeeding to the contractor’s rights is not made exempt. The person, firm or corporation owning the contract is exempted “ from taxation in respect to his, their or its interest under said contract, and in respect to the rolling stock and all other equipment of said road.” 1 submit that this exemption, so expressed, would be reasonably and even necessarily understood as giving complete immunity to those who invested their money in this contract from all taxation, direct or indirect, in respect thereto. The language hardly could have been broader. The great State of New York.cannot afford by any technical construction to limit the fair intendment of its promise. After the passage of this act, and by chapter 908 of the Laws of 1896 (Gen. Laws, chap. 24), section 185 of the Tax Law was enacted so as to tax the gross earnings of- elevated and surface roads not operated by steam. This section of the Tax Law has been amended by chapter 474 of the Laws of 1906 and revised into section 185 of *618the present Tax Law (Consol. Laws, chap. 60 ; Laws of 1909, chap. 62). This statute gave no authority to lay this-tax upon any road constructed under the Eapid Transit Act under which this relators road was built. This would seem to be a clear recognition by the Legislature of the immunity from all taxation granted by section 35 of the Eapid Transit Act, and constitutes, I submit, a legislative construction of that act.
Strange to say, however, this is the only statute under which the right to lay this tax is claimed. This right is sustainéd by Mr. Justice Kellogg in the prevailing opinion not upon any right therein given to tax the franchise of the Interborough Eapid Transit Company, but simply upon the right therein given to tax the franchise of any company which owns or operates an elevated railroad one per cent upon the gross earnings “ from all sources within this State.” It appears' that this same, relator, while owning the contract rights under the Eapid- Transit Act, also is operating' the Manhattan elevated railroad' in the city of New York, and because of this fact is held by Mr. Justice Kellogg to have forfeited the exemption^ if any, which it would otherwise have under the Eapid Transit Act; This proposition 'seems .to me radically unsound for two reasonsFirst. The exemption is' given by a special statute. The Tax Law, which is held to have'overruled this exemption, is a general statute. Authority is not needed to the proposition that a general statute presumably does not repeal or modify a special act. The two must be read together, and the relator assessed upon the gross earnings of the Manhattan Elevated Eailway Company, and not upon the gross earnings from the subway constructed under the Eapid- Transit Act. Second. This promise of exemption, thereafter acted upon by the relator, became a contract between the relator and the State, which cannot be impaired by any subsequent legislative act, general or special. This rule of law dates back as far as Dartmouth College v. Woodward (4 Wheat. 518), and has been consistently held from that time to the present. If this property were simply made exempt from taxation the corporation could confessedly be taxed for the franchise to operate either the subway or the elevated road, and these receipts be made the basis of that tax. If I am right in my construction, however, the. statute has gone further, and-by fair intendment has not only exempted the property *619but has guaranteed immunity to the company operating the road from all taxation which includes a franchise tax as well. If this be the intendment of the statute it" could not have been within the mind of the Legislature to take from the operating company this immunity simply because the company was operating an elevated "road, nor could the Legislature lawfully do so and preserve the inviolability of contract rights under the Federal Constitution. (Art. 1, § 10, subd. 1.)
The case of State v. Baltimore & Ohio R. R. Co. (48 Md. 49) presents a very close parallel to the case at bar. There the phraseology of the Maryland act (Laws of 1826-7, chap. 123, § 18) was : “ 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.” It was thereafter sought to impose-a franchise tax upon that corporation, and it was held that the courts were not bound by the literal meaning of the words of the statute, but must look to the connection in which they are used, the subject-matter to which they are applied and the motives and objects which actuated the Legislature in conferring this privilege. The conclusion of the court in that case, as expressed in the opinion, reads as follows: “ The Legislature, beyond all- question, intended to confer a substantial benefit on the company and thereby to induce capitalists and others to invest their means in the construction of a road which every one deemed of so much importance to the State.. And to say that they meant to exempt the shares only and to reserve the right to tax the property and franchises, is a construction that would render the privileges thus granted of no practical benefit to the appellee. So, considering the question as one of first impression, we are of opinion that the 18th section exempts the property and franchises of the company from taxation. If the franchises are exempt, it would necessarily follow that the gross receipts derived from the exercise of its franchises are also exempt.” In Nichols v. New Haven & Northampton Co. (42 Conn. 103) the language of the exemption ■ was “ that the stock and income * * * shall be
forever exempt from taxation.” (See Private Laws of Conn, vols. 1-2, pp. 318, 319.) The opinion of the court in part reads: “ The charter of the company pretends to hold out induce*620nien'ts to persons, to subscribe for the stock. It says, ‘Whereas, said canal, if completed,: would -be of gréat public utility; therefore, for' the purpose of inducing persons to subscribe to the"stock of said company, be- it resolved, <fec.’ There can be no escape from the conclusion that this language was intended for deception unless the body politic of the company was intended to be' included, and was included in the promised exemption from taxation.
“ It"is ti'Ue-that all exemptions from taxation are to be construed strictly in. favor of the State and against the grantee; but this principle lias never been carried so far as to require courts to be governed by the strict letter of the grant, ignoring its manifest-import, Or so far as to justify bad "faith in the making of such contracts.
“ .It might be claimed with truth that the value of the franchise of a corporation entérs into and forms a part of the value of the stock of the corporation. The franchise is valuable in proportion to the yearly net income which the corporation receives and is likely to receive"in carryingon its business." .The stock of the corporation •derives its valué tó a great extent from the. franchise and income together; and irl some cases these sources of value double and "treble its nominal value. Hence, the-value of the stock of a corporation embraces the value of its franchise and consequently, if the stock is exempt from taxation, so must the franchise likewise be exempt. (Wilmington Railroad Company v. Reid, 13 Wallace, 264.)” .In Pacific R. R. Co. v. Maguire (20 Wall. 36) the statute provided for' an exemption from taxation of the Pacific railroad, its bed and of its buildings, machinery, engines, cars and other property. The opinion of the court in "part reads: “In The Wilmington Railroad v. Reid [13 Wallace, 264], it was held that a statute exempting all the property of a railroad company from taxation.exempts not only the rolling stock and real estate owned by it and required by the com,pany for the successful; prosecution of its business, but its franchise also. In the case before us the roadbed, building^, machinery, cars, and other property not only, but the ‘ Pacific Railroad ’ is declared to be exempt from taxation. We cannot doubt that a contract not to tax a railroad company or its property is broken by the levy of a tax upon its gross' receipts for the • transportation of freight and *621passengers.” For these reasons I vote for the annulment of the Comptroller’s determination.
Sewell, J., concurred.
Determination modified by striking therefrom the excess dividend tax on the Interborough stock and as so modified confirmed, without costs.