474 



MARYLAND. 



to Mr. Gwinn ; and unless he took legal steps 

 to enforce the issuing of a commission within 

 a reasonable time, he would proceed to take 

 testimony in the case upon the charges made 

 by Mr. Wallis. Mr. Gwinn applied for a man- 

 damus to compel the Governor to issue his 

 commission. The matter was decided in his 

 favor by the Court of Appeals on the 21st of 

 December. The decision of the court was as 

 follows : 



The circumstances under which this appeal has 

 been brought before us, and the nature of the ques- 

 tions involved, make it important that it should be 

 decided without delay. We shall state in a few words 

 only the conclusions we have reached, and shall here- 

 after express the grounds and reasons upon which the 

 judgment of the court is based. 



This court is unanimously of opinion 



1. That upon the facts admitted in the answer of 

 the Governor, and the decision thereon made by him 

 as expressed in his answer, the appellee is entitled 

 to receive his commission as Attorney-General, and 

 to take the oath of office. 



2. That under the constitution and existing laws 

 the Governor has not the power to enter upon an 

 examination of the nature alleged in his answer, as a 

 reason for withholding the commission, or to try and 

 decide the contest referred to. 



The pro forma order of the Circuit Court awarding 

 the mandamus is therefore affirmed. 



The case brought by the State against the 

 Baltimore & Ohio Railroad Company, to re- 

 cover the difference between the value of cur- 

 rency, paid from July 1, 1865, to January 1, 

 1870, by way of dividends on the State's pre- 

 ferred stock, and of gold, in which the State 

 claimed should have been *paid, has been de- 

 cided by the United States Supreme Court ad- 

 versely to the State's claim. In making the 

 decision the court used the following language : 



When it (the contract) was made, payment in 

 coin was the only mode of payment recognized by 

 the law ; and doubtless in this case, as in all other 

 cases of promises to pay money made at that time, 

 the expectation of the parties was that the debt 

 would be discharged in coin. So natural was this 

 expectation that it was very rarely thought necessary 

 to provide against the contingency of a debt be- 

 coming payable with anything else than coin. 



Still, as no specific agreement was made 

 for payment in coin, in view of the operation 

 of the legal-tender acts, it was impossible for 

 the courts to enforce this understanding. 



The question of the authority of the State 

 to impose the " capitation-tax " on passenger- 

 traffic over the Washington branch of the Bal- 

 timore & Ohio Railroad has not yet been dis- 

 posed of. The Supreme Court of the United 

 States in May affirmed the judgment of the 

 State Court of Appeals as to the constitution- 

 ality of the legislation requiring the payment 

 of one-fifth of the receipts from passenger-fares 

 on the Washington branch into the State 

 Treasury. The company promptly paid the 

 amount of the judgment rendered, but still re- 

 fused to make further payments. Several new 

 suits have been brought and are still pending. 

 The counsel for the road have announced three 

 new defenses : 1. That the Legislature of Ma- 

 ryland had no right to receive any portion of 



the gross receipts upon that part of the Wash- 

 ington branch road lying within the District 

 of Columbia, and chartered by Congress. 2. 

 That the branch road on which the State has 

 a right to receive a share of the gross passen- 

 ger receipts begins at the Relay House, and 

 not at Baltimore, as heretofore always con- 

 ceded. 3. That under the act of 1831, chapter 

 330, section 8, the State reserved the power 

 to incorporate another company only in case 

 of the failure of the Baltimore & Ohio Railroad 

 Company to complete its branch road within 

 the time therein named, which was extended af- 

 terward by the act of 1832, chapter 75, section 

 12. The company contends that as the road was 

 finished within the time, as extended, the State 

 had no power to incorporate another company, 

 and was bound by an implied contract not to 

 do so, which it has violated by incorporating 

 the Potomac Railroad Company. The State, 

 having, as they contend, violated the contract, 

 has no right to demand the consideration which 

 the company agreed to pay for the monopoly. 



A case was decided in the Superior Court 

 of Baltimore, in January, involving the ques- 

 tion of the State's right to impose a tax of one 

 and a half per cent, on the gross receipts 

 of the Northern Central Railroad Company. 

 When the Baltimore & Susquehanna Railroad 

 was chartered, in 1827, it was stated in the 

 charter that u the shares of the capital stock of 

 the said company shall be deemed and consid- 

 ered personal estate, and shall be exempt from 

 the imposition of any tax or burden by the 

 States assenting to this law." In 1854 the 

 Baltimore & Susquehanna was consolidated 

 with other roads to form the Northern Central, 

 and all previous provisions, not specifically 

 repealed or modified by the act of consolida- 

 tion or inconsistent with it, were declared to 

 remain in full force. In support of its right to 

 lay the tax on gross receipts the State main- 

 tained before the court 



1. That the State has no power under the Bill of 

 Eights of Maryland to exempt any property in the 

 State from taxation. 



^ 2. That if the right to exempt be conceded, it is a 

 right which carries with it the correlative duty to 

 repeal the exemption whenever the State may think 

 the public good demands such repeal, and that the 

 passage of this taxing law must be taken to be an 

 exercise of that duty. 



3. That if the exemption existed as to the Balti- 

 more & Susquehanna Eailroad Company, its bene- 

 fits were not transferred by the consolidation act 

 to the new corporation, " The Northern Central 

 Eailway Company," and in no event could be ex- 

 tended beyond the original two millions of stock of 

 the Baltimore & Susquehanna Eailroad Company. 



4. That this is not a tax or burden upon the capi- 

 ta^ stock, but is a tax upon the corporation, as distin- 

 guished from its shareholders, measured by its gross 

 receipts, or is a tax upon its franchise, or is a tax 

 upon its business, or is an excise-tax, or a license- 

 tax, and therefore does not fall within the exemp- 

 tion. 



5. That in this inquiry, in which a provision of 

 the Federal Constitution is to be construed and ap- 

 plied, the decisions of the Supreme Court of the 

 United States are controlling, and that by recent 

 judgments of that tribunal such a construction haa 



