1. It is argued that this railroad company is not exempt from ad valorem taxation, as provided and limited in the charter, because the title to the' act incorporating it does not cover the exemption or limitation, but that the charter contains matter different from what is expressed in the title. This point is decided in the case of The State vs. The Rome Railroad Company, and settled against the objection. See that case, p. 473.
2. It is said again that the limitation on the power to tax is not good, because the enrolled act in the office of the secretary of state limits it to “one-half of per centum” which is too vague and meaningless to confer such a privilege or franchise or favor; but the act published by authority of the state as the charter of this company, expresses the limitation to be “ one-half of one per centum ,” and such was doubtless the intention of the general assembly. At all events, when the act enrolled contains the words “ one-half of per centum ,” and the act published by authority of the general assembly contains the words “one-half of one per' centum” the two expressions will be held to mean the same thing — that is to say, the sensible, intelligible thing, to-wit: one-half of one per centum.
3. The limitation is therefore good' in our judgment, and the question arises upon what is the per centum to be calculated. The words in the charter are “its annual income.” *472Does that mean gross or net income ? We think that the meaning is gross income. 4 Hill, N. Y., 23; 7 Hill, 504. Resides, in other charters of other railroad companies the word “net” is inserted before income. Why left out here, if the intention was to levy on net income only ?
It is said however, that the road is leased to the Central Railroad for a certain sum, and that this sum is the gross income — the only income that the company receives, and therefore the gross income. The act authorizing the lease does not touch taxation. The state does not alter its power to tax as in the charter expressed. Can the two companies alter that rule of taxation fixed in the charter of one of them without the state’s assent ? Clearly not, for then they might reduce it to a mere nominal sum and fritter away the tax rate reserved in the charter to little or nothing. The security for the tax due the state is this road and its appurtenances ; the tax reserved is the per centum on its gross income ; that income is what passage money and freights this road makes each year; of that an account must be rendered, and on that theper cent, must be estimated.
4. But it appears that no return has been made by this company so as to give jurisdiction to the superior court of Fulton county by affidavit of illegality.' The 12th section of the act of 1875 — pamphlet p. 118 — requires that the company shall “make return of all the gross income and receipts, and of their net income also,” as a condition precedent to their resistance of the payment of the ad valorem tax upon their property under the provisions of section 3 of the act of February 28, 1874, which gives Fulton superior court jurisdiction to try the illegality at all. Under this view there was no jurisdiction to try the case, and the defendant’s affidavit of illegality ought to have been dismissed. The other points are ruled to indicate the opinion of this court on questions necessary to a settlement of the case should the parties desire a settlement. The remedy by bill and injunction is not before us.
Judgment reversed.