I am not able to concur in the conclusion at which a majority of the court have arrived. A brief review of the faets of the case will be necessary to a clear presentation of my views.
In 1822 the General Assembly passed a resolve incorporating the Farmington Canal Company with a capital of three hundred thousand dollars, and the ordinary privileges of such a corporation, with no reservation of the-right of amendment, *132alteration, or repeal. The stock of the company was made exempt from taxation for the period of twenty-one years from and after the time the canal should be completed and in use. Under this charter the friends of the enterprise were unable to procure subscriptions to the stock, and for the expressed purpose of inducing persons to subscribe, the General Assembly the following year passed an additional resolution forever exempting, under a proviso unimportant to the present case, “ the stock and income of the corporation.” The corporation in proper form and within the time prescribed assented to this resolution, and it thereby by legal adoption became a part of its original act of incorporation. Under its charter thus enlarged the stock of the corporation was filled, and the canal constructed and operated until 1836, when the company became insolvent. By a resolution of the General Assembly passed that year a new corporation was created under the name of the New Haven & Northampton Company, with a capital of three hundred thousand dollars, to be made up of new cash subscriptions for one hundred and thirty-five thousand dollars, and the remainder by subscriptions to the amount of their respective claims by the creditors of the Farmington Canal Company, and of the Hampshire & Hampden Canal Company of Massachusetts. The corporation thus organized was successor to the Farmington Canal Company, and by a provision of its charter was authorized to, and did subsequently receive from the former a conveyance of all its franchises, rights, powers, privileges, and immunities, and was thereafter entitled to hold, exercise, and enjoy the same, in as full and ample a manner to all intents and purposes as the same had theretofore been held, exercised, and .enjoyed by the Farmington Canal Company for the purposes and with the limitations in said charter contained. The purposes for which the new corporation was organized were those ordinarily connected with and incidental to the operation of the canal, and a material limitation in its charter was the reserved right of amendment, alteration and repeal.
By another provision in its charter the corporation and stockholders were thenceforth authorized to exercise all the *133powers and enjoy all the privileges and immunities conferred upon the former corporation and its stockholders.
The longer operation of the canal having become impracticable, the General Assembly in 1846, by a resolution amendatory of its charter, gave thé New Haven & Northampton Company authority to construct a railroad along or near the line of its canal, with all the rights and powers necessary and ordinarily granted for the purpose, with a reservation in the usual form of the right of amendment, alteration and repeal. Under its charter so amended and accepted by the defendant its present railroad was constructed and has since been and is now being successfully operated.
This action is brought by the State in the name of its treasurer to recover from the defendant, as a tax for the year 1871, a sum equal to one per cent, of the market value of the capital stock of the defendant, and of its funded and floating debt, less the amount of its cash actually in hand. The defendant does not contest its liability except with respect to three hun_ dred thousand dollars of its capital stock which it claims is free from taxation under the resolution of 1823 forever exempting the stock and income of the Farmington Canal Company, and - the question whether that privilege survives and has passed to the defendant is presented for our determination.
In the absence of clear and explicit language declaratory of the intention of the legislature, there is no presumption in favor of a perpetual privilege to a corporation conferring upon it immunity from taxation with which the public and corporations generally are burdened; but when it is clearly granted to a corporation holding a close charter it is irrevocable, because it is to that extent an unqualified renunciation by the State of its sovereignty over the subject matter. It is also perpetual while it remains unsurrendered, and free from judgment of forfeiture, and while the subject in which it inheres continues to exist.
The language of the resolve of 1823 is peculiar in that it expresses the object of the exemption to be an inducement to individuals to take an interest in a public work by becoming subscribers to the stock of a corporation created and organ*134izecl to carry it on, and thereby furnishing the means to complete and put it in operation. It proceeds upon the assumption that without such inducement the enterprise must fail. The stockholders are the persons solicited, and when we consider the object sought, and the method employed, there can be, I think, no reasonable doubt of the intention of the legislature to confer the benefit of the exemption exclusively on those through whose instrumentality the desired public improvement was to be secured. The consideration for the privilege moved entirely from the stockholders, and I think “ the stock and income of the corporation ” in the sense used, means only the property and interest of the purchasers of the shares, the persons who paid their money in consideration of the exemption and without the aid of whom the corporation would have been powerless, and its charter inoperative and valueless. If the Farmington Canal Company had so continued to exist as that the rights and interest of its shareholders had been preserved, there could be no doubt of the validity of their claim to the immunity; but in 1836 that corporation had become insolvent, and a new one under a sepárate and open charter and by a different name was created to succeed to it. It is true the new corporation was authorized and did receive a conveyance of all the franchises, rights, powers, privileges, and immunities, of the old, but under the construction which I have given to the resolution of 1823 the exemption claimed was not given to the Farmington Canal Company in such a manner as to make it transmissible by the corporation after the rights of the stockholders had become extinguished. The stock of the Farmington Canal Company was entirely absorbed, and those in whose interest and for whose benefit the exemption was given were no longer interested in the stock or income of the corporation. Only its creditors became interested as stockholders in the New Haven & Northampton Company. As such creditors they had no interest in the exemption, and the new corporation could receive none through them by virtue of their becoming stockholders in it to the amount represented by their claims against the former insolvent corporation. The extinction of the stock carried with it *135the extinction of the privilege. In other words, the subject in which the privilege inhered became extinct, and the privilege itself thereby became also extinct.
It is claimed tbat, under tlio clause in the charter of the New Haven & Northampton Company conferring on “the company thereby incorporated and upon the stockholders therein the right to exercise all the powers and enjoy all the privileges and immunities conferred upon the Farmington Canal Company and its stockholders,” this immunity passed to the defendant. If 1 am correct in what I have already said it disposes of this claim so far as the corporation is concerned. I may very properly add that by the terms of its charter the defendant’s right to receive a conveyance of all the privileges and immunities of the old company was subject to the limitations therein contained, and we have seen that a very important limitation expressed was the right of alteration and repeal; and it seems to mo clear that by the section of the statutes on which this suit is brought, the General Assembly so modified the defendant’s charter as to withdraw from it the exemption claimed, if indeed it had in fact ever been conveyed to it.
If the new corporation ever had possessed the immunity it must have acquired it only by grant from tlie old. There was no contract between the State and the new corporation except tbat contained in its charter. That limits the nature of the enjoyment of all its powers and rights to a license during the pleasure of the General Assembly. The General Assembly revoked the license when it passed the act on which this suit is brought, and if the immunity in question previously existed I think it was taken from the defendant by tbat exercise by the sovereign power of the reserved right of alteration and repeal. If this reasoning is valid it applies with equal pertinence to both the corporation and its stockholders, and concludes them both.
Again, all that makes the defendant a railroad corporation is contained in the resolution amendatory of its charter passed in 1846, which was duly and formally accepted by it. This acceptance was presumably with full knowledge of and, with *136reference to tlie statute of 1845, by the terms of which the acceptance by any corporation of any amendment or alteration of its charter operates to make the original charter and all resolutions amending or altering the same, subject to amendment, alteration and repeal at the pleasure of the General Assembly. Under special circumstances this statute might operate to prevent a corporation from accepting valuable amendments to a close charter by compelling it to put at hazard some particular privilege perpetually secured to it, but we are not aware that its constitutionality could be questioned on the ground that it impaired the validity of existing contracts under which some special privilege had become legally vested, because by the acceptance of the amendment the right to the continuance of the privilege would be deemed to have been surrendered or intentionally waived. In this case the contract between the State and the stockholders in the Farmington Canal Company had terminated by reason of the extinguishment of the interest of the latter, and therefore its validity could not have been impaired by any legislation by which, subsequently to 1836, the defendant was subjected to taxation. The tax in question which is imposed on every railroad corporation in the state is authorized by a statute passed after that time, and which must, I think, be regarded- as so amending the charter of the defendant as to deprive it of any special immunity from taxation which it had previously enjoyed.
And 1 can not see that this result is avoided by a proper interpretation of the saving clause in the statutes relating to taxation, by which the stock and property of all incorporated companies and communities, which by the terms of their charters or otherwise are expressly exempted from taxation-, are relieved from the burden of it. In my judgment the defendant is not so exempt, and if in terms it appeared to be, the statutory provision just referred to, and the one on which this action is brought, are pari materiá, and will stand together unless inconsistent with each other or with the intention of the legislature. 1 discover no such inconsistency. It is obvious that the intention of the framers of the law was to impose this tax on railroad corporations either as a prop*137erty or a franchise tax, and to leave the saving referred to, to stand subject to such intention, and to such other as is contained in similar provisions with reference to other classes of corporations.
I concur fully with the views expressed by the majority of the court with regard to the claim made in behalf of the plaintiff, that the tax sought to be collected is imposed on the franchise of the defendant, and therefore payable even though the exemption claimed by the defendant was legally transmitted to it. I think it clearly a tax on the property and not on the franchise of the corporation. The cases decided by this court in which the tax was held to be imposed only on the franchise, were brought on statutes which in one essential particular differ in their phraseology from that on which this action is instituted. In neither of them, nor in those reported in Massachusetts, was the market value of the property of the corporation made, as it is in this case, the basis of taxation ; and the fact that it was not, is prominent among the reasons assigned for holding that the respective taxes were laid upon the franchise and not upon the property of the several corporations. To decide this to be such a tax would require of us to take an important step in advance of the former determinations of this court, and abolish or disregard the important distinction to which I have referred.
In my opinion judgment should be rendered for the plaintiff.
In this opinion Carpenter, J., concurred.