filed the following dissenting opinion:
Erom the view I take of the questions involved in this case, it is not of much practical importance to inquire as to the extent of the immunity from taxation, granted to the holders of the shares of the capital stock in the Balto. & O. R. R. Co., hy the provisions of the 18th section of the Act of 1826, ch. 123, which created the corporation.
Erom the peculiar terms employed in that section, vesting the property consisting of “the road or roads with all their works, improvements and profits, and all the machinery of transportation used on said road,” in the said company and their successors forever; and making the shares of the capital stock personal estate; according to the strict principles of construction, now recognized as applicable to immunity from taxation ; there is great force in the argument of the Attorney General in maintaining that the 18th section does not warrant the extension of the exemption, beyond the shares of the capital stock, to the company or its property.
The stockholders have not the ownership of the property or franchises of the corporation ; on the contrary, the *84property, including the franchises, is vested in and belongs to the company, the artificial person created by the grant, and required to perform all the duties incumbent upon it.
The stockholders can only assert their rights to any dividends accruing from the employment of the property of the company and its franchises. Gordon vs. Appeal Tax Court, 3 Howard, 150; Van Allen vs. Assessors, 3 Wall., 584; Delaware R. Tax Case, 18 Wall., 229-234; Wilmington R. R. Co. vs. Reid, 13 Wall., 264; 20 Wallace, 36.
The legal title to the property being in the company as trustee, the stockholders being the cestuis que trust, both in a qualified sense, their only remedy for the refusal of the company to pay such dividends or to compel the proper discharge of the trust, is by resort to the Courts.
It was competent for the Legislature to have granted to the company, per se, as an artificial person and to vest in it as such, all the property, real, personal or mixed— this has been done in apt language; and to have distinguished the interest of the shareholders being natural persons, and to have declared that to be personal estate— that has been done; and to have conferred upon it immunity from taxation — this has been expressly granted; and to withhold such immunity from the company or its property. Gordon vs. Appeal Tax Court, 3 Howard, 150.
■ The Legislature had also the power in the grant of the charter, to define the quality as well as the quantity of the property to he held by the company and the interest of the shareholders, and to make it real, personal or mixed property. 13 Wall., 264; 18 Wall., 229-234; 20 Wall., 38.
It is not the province of the Courts to determine what is property, or of what it shall consist, or with what faculties endowed, or what characteristics shall constitute the identity of any distinct species, real, personal or mixed.
That is not a judicial hut a legislative function.
*85The Legislature in designating the stock as personal estate, intended it as such to be treated; but it does not hence follow, that it designed to make the property of the company, in its entirety, personal estate ; on the contrary, the terms employed show that the Legislature intended no such thing, but just the reverse; to leave the property of the company unconverted, and to remain just as it was, real, personal or mixed. See Mayor & C. C. of Balto. vs. B. & O. R. R. Co., 6 Gill, 292; Prov. Bank vs. Billings, 4 Peters, 561; Phila. & Wil. R. R. Co. vs. Maryland, 10 Howard, 393; Erie R. R. Co. vs. Penn., 21 Wallace, 498.
There is no doubt of the power of the Legislature to have imposed taxes upon either, or both, or to have exempted one or both, or whilst exempting the one, to leave the other subject to the power of taxation'. See Emory vs. State, 41 Md., 38, and authorities before referred to.
If it had been the intention to exempt the company, a few words would have been sufficient, and there could have been no question upon the subject.
The 15th Art. of the Bill of Rights has provided by its mandate, for the imposition of taxes upon persons holding property, if such resort were necessary.
That Article further cautiously and carefully provides, that such mandate is not to be considered as a denial of the right of the State to impose other taxes, deemed necessary, upon grounds of public policy. The one clause is as mandatory as the other ; the integrity of the declaration cannot be severed ; both provisions, (or one with the qualification of the other,) must be considered to give proper meaning and effect to it.
To take the first clause and ignore the latter, contravenes the intention.
Fully aware of the purport of this great principle of taxation, the Legislature may have intended by the terms *86employed to exempt the shares of stock, but not the property of the company upon principles of public policy.
To the Legislature, this sovereign right of taxation or exemption is entrusted, to be exercised according to the mandate of the Bill of Rights.
If it acts without due discretion or oppressively, the remedy is not to be sought through the Courts, but with the people, who have the power to discharge faithless agents. See State vs. Cumb. & Penn. R. R. Co., 40 Md., 22, and other references in the dissenting opinion in that case; State vs. Mayhew, 2 Gill, 501; Mayor of Balto. vs. Balto. & O. R. R., 4 Gill, 292 ; Providence Bank, 4 Peters, 563 ; McCulloh vs. State, 4 Wheaton, 428 ; Howell vs. State, 3 Gill, 24.
Whenever it undertakes to grant the exemption from taxation, it must be clearly expressed. It must not be inferred except from necessary implication. McCulloh vs. State, 4 Wheaton, 428.
The power of taxation or exemption, being from its nature a sovereign attribute, and residing by the terms of the organic law in the Legislature, the Courts have very limited authority to direct, regulate, or trench upon its prerogative.
They are wisely relieved of the political duty of determining what shall, or not be the subject of taxation or exemption, or in what way the Legislature should exercise its power.
It is well that it is a political, and not a judicial function of the Government. The Legislature is the direct and authentic representative of the people, the source of power in the exercise of this high authority. They make the laws — The Courts expound them. There can be no clashing if each moves in its proper orbit.
Immunities from this vital power of taxation granted in charters of incorporation of perpetual existence, having been determined by the Courts to be contracts, or in the *87nature of contracts, vesting rights accordingly; the people of this State have deemed it a proper precaution, in their organic law, to restrain the power of the Legislature upon the subject.
The 48th sec. of the 3rd Art. of the Constitution, amongst other things, provides, by the last clause thereof, “that all charters granted or adopted, in pursuance thereof, and all charters heretofore granted and created, subject to repeal or modification, may he altered from time to time, or he repealed.”
The propriety of the pretension of considering, the exemption of a corporation from the power of taxation, as a contract irrepealable in its nature, has been much questioned, as calculated essentially to impair, if not destroy, the indispensable and sovereign attribute of the State; the power to sustain its government by taxation.
It would seem that if exemption is construed to be in the nature of a contract, and as such irrepealable by the State, and beyond the possibility of destruction by condemnation under the power of eminent domain, it virtually amounts to the establishment of the extraordinary doctrine that the Legislature of a State, upon this subject of taxation, may contract for its surrender.
If this he true, the State may be deprived of all of its attributes of sovereignty, one after another, so far as the Legislature may have authority to bind the State by such contract.
Could the contract be disaffirmed as one against the principles of public policy?
The objections to such a pretension when applied to the power of taxation l>3r a government are of serious import.
Fortunately for this State now, no succeeding Legislature has the authority by the grant of chartered privilege and exemption to create such contract, and to affix irrepealable limits upon its successors, hut each in its succession must be left free to exercise its entire constitutional authority without such restraint.
*88But. assuming that the Legislature, by the terms of sec. 18 of the charter, did intend to exempt, not only the stock, but the company, and that the stock was considered as representing the company and the property thereof; what is the extent thereof, or what did the Legislature intend to be exempted?
They were providing for the construction of a road from the City of Baltimore to some point on the Ohio river, by the charter granted to the company, and to exempt any capital stock required therefor, and the property it represented, according to the concession — whatever means, money or property were necessary for the completion of the road, including tracks, if necessary, to the full extent of its road-bed; with any lateral roads connecting therewith, and all necessary or useful appurtenances suitable and adapted for such a highway.
This was the extent, embracing all of its fixed property, with all necessary, useful or convenient adjuncts.
"Whatever the corporation holds outside, or in excess of these reservations, is liable to taxation, according to the discretion of the Legislature, upon such theory of construction.
As to the manner of taxation, I have no doubt of the power of the Legislature to impose a direct tax upon the property of the company; or upon the gross receipts thereof, as their judgment may determine.
But conceding all this to be the status of the company, in regard to taxation, under the provisions of the 18th sec. of the charter, we are confronted with the grave provisions of the Act of 1835, ch. 395, and the effect to be given to the 15th sec. thereof, commonly known as the eight million loan bill.
Whilst the company is claiming that the State should' deal with it, upon the highest good faith, and uberrima fides should be the standard, which" is quite just; there must be a reciprocal obligation on its part to observe its contract.
*89The principles of good faitli must be maintained at all events by the State with this company, as with all others of its creation.
If the exemption from taxation was granted to it by its charter, and it has since surrendered that immunity for a valuable and tona fide consideration, it can be held to its engagement, and to have parted with such exemption from the power of taxation.
The 1st sec. of the Act of 1835 provides, that upon the assent and agreement to the several provisions of the Act, by the Chesapeake and Ohio Canal Company, and the Baltimore and Ohio Railroad Company, these companies being the chief beneficiaries under the law, respectively, the Treasurer of the State should subscribe to the capital stock of each corporation the sum of three millions of dollars, and pay for the same in the manner and upon the conditions thereinafter mentioned. One of the conditions requires that a majority of the State directors should certify under oath, that in their opinion and judgment, such subscription by the State would, in addition to other subscriptions, be sufficient to complete the road to the Ohio river.
The company, by acceding to the provisions of this Act and accepting its benefits, agreed to all the provisions thereof, and solemnly stipulated to abandon any exemption from the power of taxation on the part of the State; if such be the purport of the Act, and the company has thus contracted to surrender such right to the State, if ever given to it. This subject will be found referred to in the case of the B. & O. R. R. Co. vs. The State, 36 Md., 529.
The difficulty in that case grew out of the construction to be given to the contract between the State and company, arising out of the provision of this Act, as to the medium of payment by which the company could discharge itself from the obligation of the contract.
*90The State, claiming to he paid in gold, as it had such coin to pay on the bonds given to the company, treating the contract between the parties as one of indemnity. The company, on the contrary, insisting that payment could be made in legal tender notes of the United States. The difference in the medium of payment being some $289,489.
This was determined by this Court against the State, because of the decisions of the Supreme Court, in the cases of Knox vs. Lee and Parker vs. Davis, 12 Wall., 457, adjudicating that debts could be paid in legal tender notes. Probably, besides the consequences to this State, this decision of the Supreme Court, reversing by a bare majority the former contrary judgment of that Court, has had not only the effect to disturb the integrity of contracts, but to unsettle and derange the currency and business of the country, more then all other causes combined.
The majority of this Court rested its judgment upon the authority of that decision.
It is questionable, in my opinion, if the case had been carried to the Supreme Court, it would have determined that this case between the State and company, came within the general class of cases to which that ruling was intended to apply.
It is clear, at least to my apprehension, that it was understood by the State and the company, and all parties interested, that by this well considered Act, the State designed to become re-invested with its original attribute of sovereignty over the subject of taxation, if it had parted with any ; and the company,- by acceptance of its provisions, intended to abandon any right to exemption. If such is not the meaning of the 15th section, it would be difficult to provide more definite terms. It is specifically and emphatically declaratory of such purpose. •
The following are the terms employed in that section: “And be it enacted, that in case it shall be necessary, at any time hereafter, to levy a direct tax for the support *91of Government, or to sustain the public credit, the same shall he laid according to the \?yth Art. of the Declaration of Rights, including all goods, wares and merchandise, belonging to citizens of this State, ships and vessels, in or out of port, moneys at interest on mortgage, bond or any chose in action, stock and public securities of every description, and all income derived from shares of every incorporated institution, or otherwise, as well as every other description of property, real, personal or mixed, which escapes taxation under existing laws; and the faith of the State is hereby pledged to pay the same accordingly, in consideration hereof, and to provide for the payment of interest, and the reimbursement of principal of debts to be created in virtue of this Act, or of debts which may he created at any subsequent Legislature; and all Acts and parts of Acts in contravention of the constitutional and equitable principles herein contained, shall thenceforward be repealed, abrogated and annulled. ’ ’
Upon the passage of this Act of 1835, with its solemn and sweeping provisions, and its acceptance by the company, and the stockholders thereof, both company and stockholders, in keeping with the provisions of the Act of 1826, creating the company ; it followed as a necessai’y consequence, that all exemption of the company, its property, stock and franchises, if any existed under previous legislation, was absolutely and unqualifiedly surrendered to the taxing power of the State.
The company and its stockholders now occupy the same ground, and are subject to the same authority of the State as other corporations or stockholders, and must look to the Legislature for the redress of all grievances, or relief from the burden of taxation, so far as it has authority to interfere upon that subject or otherwise.