The opinion
Dixon, J.
(dissenting). In view of the opinion of this court in Singer Manufacturing Co. v. Heppenheimer, 29 Vroom 633 , a vote to reverse the judgment now before us needs explanation, for according to that opinion the judgment should be affirmed. Had the judgment authorized by that, opinion been entered of record, and the record been introduced into this cause by pleading or as evidence, it would have been conclusive of the controversy, since the real parties, the state and the Singer company, and the subject-matter, the effect of the sixth section of the company’s charter, are the same now as then. But as no such judgment appears, the dispute cannot be deemed res judicata; only the opinion can have force, and that on the doctrine of stare decisis. Even on that footing, however, it is our duty to follow it, unless there be very cogent reasons to the contrary and a clear manifestation of error. 1 Kent Com. 476.
Accepting this as the test, my mind is constrained not to follow that opinion.
The question at issue is one of the utmost importance. The opinion, conceding the intention of the legislature to impose on this company the same franchise tax as on other *346 like corporations, denies the power of the legislature to do so— yea, goes even deeper and denies the power of the very sovereignty of the state itself, acting upon the fundamental right to make and amend its constitution, to subject this corporation to the same burdens as other similar bodies must bear. A conclusion such as this should be reached only for reasons which are indubitable or acquiesced in only on authority which is imperative.
A perusal of the opinion will indicate that it rests mainly on the proposition that, according to former adjudications in this state (State v. Branin, 3 Zab. 484; State v. Bentley, Id. 532 ; State v. Powers, 4 Id. 400), the exemption of a corporation from tax exempted the shares of its stock. On this was jrredicated the so-called converse, that an express exemption of the shares will also exempt the company; and the court, finding in the charter a clear exemption of the stock, thence inferred a general exemption of the corporation. The basis of the conclusion was the authority of prior decisions.
An examination of those decisions will show that they also depend largely on authority, the authority of an opinion delivered in the Supreme Court of the United States upon a question finally reviewable in that tribunal. This will appear by the following quotations from the opinion of Chief Justice Green in State v. Branin, 3 Zab. 493: “The terms of the contract on the part of the state are that no other tax or impost shall be levied or assessed upon the said company. Does this exemption extend to the interest of the individual stockholders in the property of the company ? If this were a new question, I should have some difficulty in arriving at the conclusion that the shares of the individual stockholders were, by virtue of the contract, exempt from taxation, on the grounds that, by the terms of the contract, the exemption is strictly limited to the body corporate; that the property of the individual stockholder is not identical with the property of the corporation and not within the terms of the exemption; that in a public grant nothing passes by implication, the contract in all cases of doubt being taken most strongly in favor of *347 the public and against the grantee, and especially as the fact of giving such construction operates to limit the taxing power of the state. But this question appears to have been decided in favor of the exemption of the stockholder from taxation, under a similar legislative provision, by the Supreme Court of the United States in the case of Gordon v. Appeal Tax Court, 3 How. 133 . It was held in that case that an exemption of certain banks from taxation exempted the stockholders of the banks. * * * As the question is one of constitutional law which lies peculiarly within the jurisdiction of that court in the last resort, there is an obvious propriety in adopting their conclusion.”
The same case in 3 How., entitled Gordon v. Appeal Tax Court , is cited as controlling by the other judges, and on this authority rest the earlier decisions in this state.
But in Shelby County v. Union, &c., Bank, 161 U. S. 149, the federal Supreme Court pointed out that the decision in the Gordon ease was due to its very special circumstances, and declared as a principle well established that there is a clear distinction between the capital stock of a corporation and the shares of stock of such corporation in the hands of its individual stockholders, and that so separate are these properties and so distinct in their nature that the taxation of the one property is not the taxation of the other. Thereupon the court referred with approval to the case of Union Bank v. State, 9 Yerg. 490 , where it was held that, notwithstanding an exemption by the charter of the capital stock of the bank, the state might tax the shares of stock in the hands of individuals, and formally adjudged that a contract exempting from taxation the shares of stock in the hands of individual stockholders did not exempt from taxation the capital stock of the corporation, its surplus or accumulated profits.
Thus, we see that the court which decided the Gordon case has repudiated the doctrine which it was thought to maintain, and by solemn judgment has condemned as unsound the supposed converse of that doctrine which formed the staple of this court’s opinion.
*348 The case of Shelby County v. Union, &c., Bank was decided March 2d, 1896, but was not known of by this court when, shortly afterwards, the opinion in Singer Manufacturing Co. v. Heppenheimer was announced. Had this court then learned, as we now have learned, that the tribunal, whose authority had been deemed the all-sufficient support for the principle invoked, utterly refused to sanction the principle, but proclaimed and enforced its opposite, it is safe to say the case in hand would have been differently dealt with, even if on other grounds the same conclusion had been reached. In resting that conclusion on authority there was manifest error, and I therefore think the rule of stare decisis does not preclude me from considering the present judgment as res nova.
The true test to be applied in examining the validity of a claim of exemption from taxation was declared by Chief Justice Green in language already quoted. In Chicago, Burlington and Keokuk Railroad Co. v. Guffey, 120 U. S. 569, 575 , Mr. Justice Harlan declared it in these words: “ It is the settled doctrine of this court that an immunity from taxation by a state will not be recognized unless granted in terms too plain to be mistaken.” And in Bank of Commerce v. Tennessee, 161 Id. 134, 146, Mr. Justice Peckham said : “Taxes being the sole means by which sovereignties can maintain their existence, any claim on the part of anyone to be exempt from the full payment of his share of taxes on any portion of his property must on that account be clearly defined and founded on plain language. There must be no doubt or ambiguity in the language used upon which the claim to the exemption is founded. It has been said that a well-founded doubt is fatal to the claim; no implication will be indulged in for the purpose of construing the language used as giving the claim for exemption where such claim is not founded upon the plain and clearly-expressed intention of the taxing power.”
Another general proposition may be premised in the words of Chief Justice Waite (Tennessee v. Whitworth, 117 U. S. 129, 136 ): “In corporations, four elements of taxable value are *349 sometimes found — ;-first, franchises; second, capital stock in the hauds of the corporation; thi?'d, corporate property; and fourth, shares of the capital stock in the hands of the individual stockholders.”
Guided by these lights, I turn to the exemption now under examination. It is thus expressed: “ So long as the said corporation shall invest and keep invested in real estate within this state the sum of five hundred thousand dollars, the real and personal property of the said corporation not actually in fact within the State of New Jersey, and the stock of the said corporation held or owned by any of its stockholders shall not be liable to any tax or impost whatsoever.”
There is here an exemption of part of the third element— corporate property — and of all of the fourth element, shares held by stockholders, as classified by Chief Justice Waite. It is impossible to contend that any exemption of the other elements, the franchises and the capital stock in the hands of the corporation, is expressly granted, or to deny that a claim to such exemption must rest on an implication which at best is doubtful, and therefore inadmissible. Such, to' my mind, is the simple solution of the question at issue, when we are freed from the notion that an exemption of shares involves an exemption of the company.
But, even on the supposition that a mere exemption of the shares, standing alone, creates an exemption of the corporation and its property, I do not think such an exemption can be derived from the express terms of this charter, for the express exemption of the corporate property not within this state indicates that the exemption of the shares in this case was not understood as implying an exemption of the company or its property. The course of thought suggested by reading the charter is that, first, the legislature considered what immunity should be granted to the corporation itself, and thereupon determined that the real and personal property of the company not actually within the state should not be liable to any tax or impost whatsoever, and secondly, it considered what immunity should be granted to the stockholders, and determined that their shares of stock should be likewise exempt.
*350 In the former opinion of this court it is said that the express exemption of the corporate property outside of the state was inserted in order that the real and personal property of the company in the state might be taxed here; that that was its apparent purpose and entire effect. "With deference, I cannot but think that this is a very strange construction. It means that the legislature, understanding one clause of the charter to import a universal exemption, determined to narrow its scope by granting a further exemption. If the legislature had thought that an exemption of stock implied an exemption of the company and its property, and had intended to preserve only a right to tax the property in this state, how much simpler and more natural would have been an expressed exemption of the stock in the hands of the stockholders, with a proviso that that should not imply an exemption of the property within the state. Then it could have been reasonably argued that the legislature contemplated the exemption itself as one that might cover the corporation and its property, and the proviso "was designed to limit its effect. But to discern that train of thought in the form of words employed in this charter is quite beyond my power of insight.
It is further insisted that the real and personal property of the company not actually within, the state could not be subjected to direct taxation by the authority of this state, and therefore the exemption granted must have been designed to prevent any indirect taxation thereon; and since the-present-tax, if exacted, must come out of the mass of the company’s property, it is an indirect tax upon the property outside of the state, and so violates the terms of the exemption.
So far as concerned the personal property of the corporation outside of the state, it would certainly be, on general principles, subject to the state’s power of taxation, and the framers of this exemption may have doubted whether the state’s power might not also reach the real property of its own creatures, and therefore have coupled both classes of property in the" same provision. At any rate, there is nothing *351 uuusual in an unnecessary precaution. But, however this may be, the things exempted are property, and if the present tax be prohibited it must be because it is a tax on property. If that be its nature it does not need so much argument to prove its illegality, for, by our constitution, property when taxed must be taxed according to its true value, and, confessedly, this impost is not graduated by that standard. But, under the decisions of this court not questioned, the tax or fee now resisted is not within the constitutional provision, because it is not a tax on property. Standard Cable Co. v. Attorney-General, 1 Dick. Ch. Rep. 270; Tidewater Pipe Co. v. Assessors, 28 Vroom 516 ; affirmed on error, 30 Id. 269. - There is, of course, a sense in which every tax or governmental charge requiring the payment of money is an imposition upon property, for every such requisition, whether it be a property tax, or a stamp duty, or a poll tax, or a license fee, must be met out of property. But by a tax upon property is meant only such a tax as is assessed either on property, as are generally our real estate taxes, or on the owner because of his property, as are our personal estate taxes. If the present .charge is not a tax on property in either sense, within the constitutional injunction, which should be construed liberally, it cannot be a tax or impost on property, within the exemption, which must be construed strictly, and unless it be a tax or impost on property it is not affected by the exemption.
But even if this claim that something beyond property taxes is prohibited, it would be satisfied to all reasonable intents, under the present taxing act, by deducting from the amount of the company’s capital stock on which the license fee is computed, the value of the company’s real and personal property not actually in fact within this state. Such a deduction, on this hypothesis, ought to have been made in the Supreme Court in accordance with the act of March 23d, 1881 (Gen. Stat., p. 3404), instead of the reversal of the entire charge.
One other point deserves mention, not perhaps for its *352 intrinsic merit, but because of the earnestness with which it is pressed. It is said this charter was accepted by the company in reliance upon the decisions of our Supreme Court above mentioned, and in the belief that under them the company secured immunity from all taxation except that which might be levied on its property within the state; consequently it is asserted the effort of the state to collect the present charge is a breach of faith.
The groundlessness of the suggestion that this charter was-framed with reference to those under consideration in the-reported cases will plainly appear on comparing its provisions with theirs. The charter construed in State v. Branin enacted1 that the company should pay to the state a certain sum for each passenger and each ton of freight transported, and that no other tax or impost should be levied or assessed upon the-company; the charter construed in State v. Bentley enacted that the company should pay to the state annually a tax of one-half of one per centum on the cost of the road, and that' no other tax or impost should be levied or assessed upon the company; and the charter construed in State v. Powers enacted that all the lands, tenements, hereditaments, good,s and chattels to-the society belonging should be free and exempt from all taxes, charges and impositions whatsoever under the authority of this state, whether for state or for county uses or for any -other use whatsoever. On these provisions the court held that the shares in the hands of stockholders were not taxable. There is no similarity between the language of those charters and that of the Singer company. In each of the earlier charters we find' a general exemption of the company or its property and no-reference whatever to the stock in the hands of stockholders in the Singer charter we have no exemption of the company itself, a very limited exemption of the company’s property and an express exemption of the shares of stock in the hands of stockholders. In each one of the earlier charters there-exists also a provision for a definite mode of taxation, so that if the maxim “ expressio unius exclusio alterius est” were-applied every other mode would be prohibited, while here no particular mode of taxation is prescribed but definite kinds- *353 of exemption are granted, so that the application of the maxim forbids the claim of any further exemption and leaves the range of taxation unimpaired. It appears incredible that the phraseology of the Singer charter was adopted on the faith of a meaning ascribed to the charters construed in the reported cases. Had these earlier decisions been in the minds of the parties and their purpose been to secure through them for this charter the significance now set up, the plain statement would uudoubtedly have been that the property of the company actually within the state should be subject to taxation, but that no other tax or impost whatsoever should be levied or assessed upon the company.
Instead of charging upon the state a breach of faith for its attempt to exact this license fee, it would be much more reasonable to charge such a breach against the company for asserting the unalterability of its exemption granted in 1873, in view of the act of February 14th, 1846 (Pamph. L., p. 16), and the decision of this court in 1867 (Warren Railroad Co. v. Person, 3 Vroom 566 ), that by force of that act there was; in legal effect, incorporated in every charter granted after 1846 a provision that it should be subject to alteration, suspension or repeal, in the discretion of the legislature.
But I do not consider the question of good faith on either side to be involved. The state demands of the company that it shall bear the same burden as other similar corporations, and the company denies the legality of the demand. Whether the demand is legal or not, is the sole controversy, and the decision turns on the true meaning and force of the company’s charter. On that and that only do I predicate my vote to reverse the present judgment.
For affirmance land concurrence in opinion of Van Syckel, J.) — The Chancellor, Chief Justice, Depue, Ludlow, Van Syckel, Adams, Bogert, Hendrickson, Nixon. 9.
For affirmance — Vredenburgi-i. 1.
For reversal — Collins, Dixon. 2.