The opinion of the court was delivered by
The question presented in this case is whether our general laws authorize municipalities to levy taxes on mere corporate franchises.
That such franchises ,are taxable as property is settled by the judgment in State Board of Assessors v. Central Railroad Co., 19 Vroom 146, but whether they are included among the subjects of municipal taxation is another question, dependent upon the proper construction of the laws delegating the taxing power to municipal bodies.
The defendant, in support of the present tax, first invokes the act of 1866 (Rev., p. 1150), the second section of which enacts that all real and personal estate, whether owned by individuals or corporations, shall be liable to taxation.
The form of expression adopted in this enactment suggests, I think, that it was designed to reach only those species of property which were usually owned both by individuals and by corporations, and that other species, such as offices, which are owned by individuals almost exclusively, and franchises, which are owned by corporations almost exclusively, were not *473within the purview of the law. • This suggestion is strengthened by the third section, which declares that the term “ real estate” shall be construed to include all lands, all water power thereon or appurtenant thereto, and all buildings and erections thereon or affixed to the same, trees and underwood growing thereon, and all mines, quarries, peat and marl beds, and all fisheries; and that the term “ personal estate ” shall 'be construed to include goods and chattels of every description, including steamboats and other vessels, money, debts due or owing from solvent debtors, * '* * public stocks •and stocks in corporations. Every sort of' property thus enumerated is commonly owned both by individuals and by corporations.
It seems reasonable also to regard this specification of the kinds of property which are to be included in the terms “ real estate ” and “ personal estate,” as a definition of those terms, although that is not strictly required by the words of the act. Such has, I think, been its construction in practice, and such seems to be the force attributed to it in the opinions delivered in this court and the Court of. Errors, in Pipe Line Co. v. Berry, 23 Vroom 308; 24 Id. 212. So construed, corporate franchises are excluded, for among the particulars named there is.none under which they can be placed.
Even if this specification be not deemed a strict definition, yet there is a strong probability-that if, in framing this law, the legislature had intended to render corporate, franchises liable to tax, so important an item would have been expressly mentioned in the detailed description of the subjects of taxation. Its omission from the list indicates its exclusion from the scheme.
In our judgment, mere corporate franchises are not taxable under this law.
It is further urged that they can be taxed under section 105 of the “Act concerning corporations ” (Rev., p. 196; Rev. Sup., p. 170), which provides thát the real and personal estate of every corporation shall be taxed the same as the real and personal estate of an individual.
*474This language, however, corresponds so closely with the phraseology of the act of 1866 in describing the subjects of taxation, as to compel the conclusion that, the same subjects were intended by each. Such an interpretation harmonizes with the decision in Jersey City Gaslight Co. v. Jersey City, 17 Vroom 194, where the general expressions of section 105-were limited by the provisions of the act of 1866.
Our conclusion, therefore, is that the tax on the value of the corporate franchise is illegal and should be set aside, with costs.
On the principles laid down in People v. Cassity, 46 N. Y. 46; Smith v. The Mayor, 68 Id. 552, and Pipe Line Co. v. Berry, ubi supra, it would seem that the prosecutor was possessed not only of corporate franchises, but also of an estate-in the land where its pipes and hydrants were located, and that this estate was assessable as real estate under the act of 1866. But according to the stipulation, we must suppose that an assessment was levied upon this real estate, outside of the $220,000, which is agreed upon as the value of the franchise. If this supposition be wrong, the parties may be heard on a motion to change the stipulation.