delivered the following dissenting opinion:
I dissent in toto from the opinion of the majority of the Court filed in this case ; and while I shall refrain from a general discussion of the questions presented by the record, there is one fundamental question in regard to which I shall state briefly the grounds of my dissent.
That gross receipts of a railroad company, upon which the tax in this case was levied, under the Act of 1812, ch. 234, are not property, within the meaning and contemplation of the 15th Article of the Bill of-Rights of this State, and may, therefore, be taxed without restriction, is a proposition to which I can never yield assent. What are such receipts if not personal property? And if personal property, upon what principle are they to be distinguished from other personal property within the meaning of the Bill of Rights ? The rule of taxation as prescribed by the 15th Article of the Bill of Rights has reference to real and personal property, as those two well defined classes of property are known and understood, and makes no manner of distinction between the one species of real or the one species of personal property and another. Whatever falls within the one class or the other is within the letter, and also within the spirit and reason, of the provision of the Bill of Rights. To make distinction by construction, such as is made in this case, and thus withdraw property from the protection of the restriction imposed by the Article *386referred to, is at once to break down and destroy the great safe-guard against arbitrary and capricious taxation. For what does it signify that the Legislature is restrained from imposing any other than an equal and uniform tax on the road-bed or rolling stock, with all other real and personal property of the State, if it can by taxing the gross receipts or earnings of that very property, actually empoverish the corporation ? If the gross receipts are not within the protection of the Bill of Rights, then there is no restriction upon the power of taxation with respect to them. They are entirely subject to any arbitrary or capricious levies that the Legislature may think proper to make. And thus the most enterprising, industrious and adventurous portions of the community are liable to be made the victims of excessive taxation. For it is not confined to railroad companies, but all corporations, and.even individuals, are liable to have their gross earnings taxed without limit or restriction, upon the same principle that the tax on gross receipts is supported in this case. And so, by construction, the great fundamental rule which has existed as a part of the Constitution from the foundation of the State, requiring equality and uniformity in the imposition of taxes, becomes a mere platitude, without force or meaning, only requiring a little device on the part of the Legislature to evade all the restriction that its language imports.
I certainly know of no case that decides that the gross receipts or earnings of a corporation are not property, in the strictest sense of the term. On the contrary, according to my reading of the cases, they all concede that such receipts are property of the corporation, as much so as anything else owned by it. Such was certainly conceded and declared in the case of the State Tax on Railway Gross Receipts, 15 Wall., 284. In that case, the Supreme Court, in speaking of the tax and upon what it was imposed, said: “ The tax is laid upon the gross receipts *387of the company; laid upon, a fund which has become the property of the company, mingled with its other property, and possibly expended in improvements or put out at interest. The statute does not look beyond the corporation to those who may have contributed to its treasury. The tax is not levied, and, indeed, such a tax cannot he, until the expiration of each half-year, and until the money received for freights, and from other sources of income, has actually come into the company’s hands. Then it has lost its distinctive character as freight earned, by having become incorporated into the general mass of the company’s property.” And in the case of this very corporation against Bayless, 2 Gill, 355, the profits of the road, received in respect to that portion of it lying between the Susquehanna river and the Delaware State line, were held by the Court of Appeals to be part of the property of the corporation, and therefore embraced by the exemption of the shares of the capital stock from taxation ; and it is a little difficult to understand how the decision of that case can be reconciled with the decision of the present.
Nor can I assent to the proposition that this tax is to he regarded as a tax on the franchise or business of the corporation, measured by the amount of its gross receipts, and therefore not within the restriction imposed by the 15th Article of the Bill of Rights. The tax, by the very terms of the law, is “levied annually upon the gross receipts of all railroad companies worked by steam.” It is, therefore, a specific levy upon the particular fund, requiring a certain proportion of it to be paid over to the State. But if the terms of the law were different, I utterly deny that the State has power, under the Bill of Rights, to impose an arbitrary tax, without reference to value, and uniformity of assessment with other property of the State, on the franchise of the corporation. The franchise of the corporation is not only property, but is property of the most valuable kind, essential to the very *388existence of the corporation itself. If we were without authority in our own Courts, the language of the Supreme Court of the United States, in the case of the Wilmington R. Co. vs. Reid, 13 Wall., 264, is very explicit on this point. It was there insisted that the franchise was something entirely distinct from the property of the corporation, and that the Legislature, while' it was restrained from taxing the property was not inhibited from taxing the franchise. "But the Court said that that position was equally unsound with the others taken in the case. Nothing, say the Court, "is better settled than that the franchise of a private corporation — which in its application to a railroad is the privilege of running it and. taking fare and freight — is property, and of the most valuable kind, as it cannot he taken for public use even without compensation. It is true, it is not the same sort of property as the rolling stock, road-bed, and depot grounds, hut it is equally with them covered by the general term 'the property of the company,’ and, therefore, equally within the protection of the charter.” And in this State, a franchise has been declared, in the most unequivocal terms, to he property within the meaning of the 15th Article of the Bill of Bights. Mayor & City Council of Balto. vs. Balto. & Ohio R. Co., 6 Gill, 288.
As it is apparent that the State tax attempted to he collected from the appellee, under the Act of 1872, ch. 234, imposing a tax of one-half of one per cent, on the gross receipts of the company, far exceeds the rate of taxation imposed on the other real and personal property of the State, I think such tax invalid, and that the judgment of the Court below ought to be affirmed.