The State v. Butler. to exercise new powers without breach of the law, but it takes away no existing right": Mor. also 92 U. S. 665. statute by which these changes were authorized expressly reserved to the company as before stated, "all their present rights, privileges and immunities excepting only that of insurance." The principal if not the only immunity possessed by the company was the right to pay one-half of one per cent per annum upon the capital stock subscribed in lieu of all other taxes, and to have immunity from any other or further taxation upon complying with this provision of the charter. And that this immunity was continued to the company in its new business by the express terms of the 21st section of the act of 1869, also, is too well settled to admit of any doubt: Railroad Co. v. Hicks, 9 Baxt., 442; Wilson v. Gains, lb., 546; Gaines v. Whitworth, 8 Lea, 594. And it has been so in effect determined both by this court and the Supreme Court of the United States in regard to the indentical charter now under consideration. In the case of Memphis v. Farrington, 8 Baxt., 539, Farrington was the owner of a number of shares of stock in this identical Union and Planters' Bank, upon which the State assessed taxes, the payment of which was resisted upon the grounds that the shares of stock were exempt under the above cited provisions of the charter. existing power, and effects no on Priv. Cor., sec. 455; see But if this vere not so the In the opinion of this court, delivered in that case, it was conceded that under the provisions of the charter the payment of one-half of one per cent had the The State v. Butler. effect to relieve or exempt the capital stock of the bank from the payment of any other taxes. But it was held that as there was a distinction between the capital stock of the bank and the shares of stock owned and held by individuals, it was not the purpose of the Legislature to exempt both, and hence the individual shares of stock owned by Farrington were subject to taxation. The cause was taken by appeal to the Supreme Court of the United States, where it was held that the charter Was a contract between the State and the bank, and the tax of one-half of one per cent on each share of the capital stock was in lieu of all other taxes, and hence the shares of said capital stock were not subject to any additional tax in the hands of the holder. Hence the judgment of this court was reversed with directions to enter a decree in favor of the stockhold ers: 95 U. S., 679. While we are aware of the rule that where there is any doubt as to the power to assess the tax, the doubt must be resolved in favor of the power, yet conceding the rule to its fullest extent, standing as this case does, we can not see where there has been any roɔm left for a possible doubt by the direct decisions upon the very questions involved. That the banking house necessary for and actually used in the conduct of the business of the company is covered by the exemptions: See DeSoto Bank v. Memphis, 6 Baxt., 415; Bank of Commerce v. McGowan, 6 Lea, 703. It is, however, insisted now that inasmuch as the The State v. Butler. capital stock of the company was restricted by the original charter to $300,000, and by the amendatory act was allowed to be increased not to exceed $1,000,000, and was actually increased to $600,000, and as it was their present rights, privileges and immunities which were retained, although whatever the immunities the company then had are still possessed by the defendant bank. Yet it is only applicable to the amount of capital stock it then had, and can not extend to the increased capital stock of the company. We are unable unable to yield assent to to this proposition. In the cases above referred to in which this same charter has been construed no such question was raised or insisted upon, but the immunities of the charter exempting the company from any further or other taxation except one-half of one per cent upon each share of its capital stock subscribed, was taken and held to apply to the entire capital stock then subscribed (and which was stated to be $675,000), as well that which was subscribed after as before said amendment of 1869. No question was made as to whether the shares of stock owned by Farrington were subscribed before or after said amendment to the charter, or whether they were of the original or increased capital stock of said corporation. Again it will be observed that the provision of the original charter was not to pay one-half of one per cent upon $300,000 of capital stock, but while as the charter then was the capital stock was not permitted to exceed that sum, yet the provision was to pay onehalf of one per cent upon each share of the capital The State v. Butler. stock subscribed, which was to be in lieu of all other taxes, etc. The amendment simply granted the company the privilege of increasing the capital stock to sum not exceeding $1,000,000, but the charter immunity of paying one half of one per cent upon each share subscribed in lieu of all other taxes, was in no manner whatever attempted to be changed or interfered with. They could have increased it to any amount less or greater than they did not to exceed $1,000,000, or permitted it to have remained as it was, and the obligation to pay simply attached when the shares were subscribed, and upon the amount subscribed. That the rights vested under the charter in question could not be affected by the Constitution of 1870 is perfectly plain. As we have seen, it was a contract between the State and the bank, and a convention of a State has no more power than a Legislature to violate the obligation of contracts: Yer, 495; 1 Heis., 284; 4 Wallace, 595. 9 Other questions have been raised in argument which we deem it unnecessary to notice, as they are all resolved under the principles already announced. The result is that the chancellor's decree must be affirmed. The parties each will pay one-half the costs. FREEMAN, J., delivered the the following dissenting opinion: By the act of March 20, 1858, certain parties were incorporated under the name and style of the "DeSoto Insurance Coorpany," with power to conduct a fire and life insurance business. The State v. Butler. By the 10th section of the act it was provided that "said company shall pay to the State an annual tax of one-half of one per cent on each share of capital subscribed, which shall be in lieu of all other taxes. By the act of February 12, 1869, this company were empowered to discontinue the business of insurance, and adopt that of banking, under the name of Union and Planters' Bank of Memphis, under which the present banking institution was organized. The exemption contained in the tenth section of the charter of the insurance company may be assumed present for the purposes of this opinion to have been conferred on the bank in the charter granted. The bank is owner of a valuable banking house in the city of Memphis, purchased with its capital stock, used exclusively for the business of the bank. This property has been assessed for the years 1874 to 1878, inclusive for taxes by the late municipality,. the city of Memphis, the property being valued va-riously for the several years ranging from $27,00) in 1874 to $17,000 in 1878, and the taxes claimed to be due, amounting to several thousand dollars. The bank having paid the one-half of one per cent to the Comptroller of the State Treasury, claims to be exempt from all other taxes. The rate of taxes for these years on the property of other citizens ranged from $1.80 on the hundred dollars to $3, and is said in subsequent years in the still heavier. city to have been The question is whether this exemption can be |