the court committed no error in submitting the case to the jury under the instructions granted. Upon that assumption, those instructions clearly and correctly submitted the whole case fairly to the jury. There was no objection to the legal propositions asserted in the plaintiff's prayers, but it was contended that his first and second prayers should not have been granted for the reasons stated in the special exceptions filed thereto by the defendant, viz.: That there was no evidence that White was at the time of the arrest an employé of the defendant company, and that he was acting as an employé of the defendant company within the scope of his authority. Before considering the evidence bearing upon these questions, which are the most important ones presented on the record, we will examine briefly some of the other more material portions of the testimony. The plaintiff testified that at the time of the injuries complained of he resided at Cambridge, Md.; that on July 21, 1905, he purchased a ticket from Cambridge to Ocean City and return, good for one day; that he left Ocean City on his return home about 5 o'clock in the afternoon of that day; that his wife was with him, and he had remained with her the greater part of the day; that on his return trip there was a man on the train who was acting in a disorderly manner; that he called the attention of Mr. White, the police officer on the train, to the man's misbehavior; that White, at the request of a lady passenger, arrested the man, and removed him to the rear part of the car; that witness asked the officer what he was going to do with the man, whose name was Manning, and White said that there would be officers at Salisbury to meet him; that he asked White if Manning could not be taken to Cambridge, as he and the other witnesses were strangers at Salisbury; that White told him that he might see the officers at Salisbury, and see what they would say about it; that when the train arrived at Salisbury White took Manning off, and witness and several others got off; that when witness got on the platform he asked the officer if he would allow Manning to be carried to Cambridge; and that White, who was the police officer on the train, and the one who had arrested Manning, told witness it was no concern of his, and to get back on the train. He then testified that he started back, and had reached the second step of the car, when he was pulled off by White, who took him by the arm, pulled him off, and handed him over to a constable by the name of Kelly; that Kelly took him to jail, and he and his wife spent the night in jail, as he had no money to secure lodging elsewhere for his wife; that he was discharged the following day, and left Salisbury on the afternoon of the day of his release, and reached home at 8 o'clock that evening. He further testified that he was not under the influence of liquor; that he had no disturbance with any one on the train, or with any officer of the company, and was con

This

ducting himself in a proper manner. testimony of the plaintiff as to his proper and orderly behavior was corroborated by Mrs. Twilley, Arthur G. Jackson, and Leroy Vane. Mr. Vane testified that after Twilley had gotten off the car at Salisbury he heard an officer say to Twilley, "You had better get on the car"; that the plaintiff started to get on the train, and had gotten on the second step, when White grabbed him by the arm and pulled him off the car; that he did not see the plaintiff do anything unusual on the platform, did not hear any disorder on the platform, heard no cursing or swearing, and there was nothing in the plaintiff's conduct to indicate that he was under the influence of liquor. Testimony was produced on behalf of the defendant that the plaintiff was drunk and disorderly on the train, and that at Salisbury he interfered with the officers when they were about to take Manning to jail; that he was drunk at the station in Salisbury, was cursing and disturbing the peace, and was arrested by White for cursing him and interfering with the other officers in the discharge of their duty. It was the duty of the court to have submitted this conflicting evidence as to the condition and behavior of Twilley to the jury, with directions as to its legal effect upon his right to recover, in case they should find the testimony of the defendant to be true. This was done by the first and second instructions granted on the part of the plaintiff, and by the first, third, fourth, and fifth granted prayers of the defendant, which expressly told the jury that they must find for the defendant, if they believed the testimony we have referred to as to the plantiff's misconduct and intoxication. These instructions put the defense upon this ground as clearly and as strongly to the jury as it had a right to expect, and this court has no power to review the jury's finding upon those questions.

2. The questions raised by the defendant's special exceptions to the plaintiff's first and second prayers will now be considered. William White, who arrested the plaintiff, was a machinist in the employ of the defendant corporation, and had been working for it about four years, and on the afternoon or night of July 20, 1905, at the request of Mr. Benjamin, the superintendent of the defendant company, was appointed by the mayor of Salisbury as a special police officer, and was acting as such police officer on the defendant's excursion train from Cambridge, Dorchester county, to Ocean City, in Worcester county, on the day of the plaintiff's arrest. While thus employed, he was paid his usual wages as a machinist by the railroad company. He was appointed for 24 hours only. While the testimony shows he qualified as a special officer before a magistrate of Salisbury, no commission was produced at the trial, and it is doubtful if one was issued. He testified that the mayor of the town had the matter of his commission fixed up with

V.

Mr. Benjamin, who gave him orders to go to Mr. Trader and be sworn in, and that he understood that he was to act as a police officer for the town if it needed him, or for the defendant company if it needed him. He did assume to act as a special officer on the defendant's train on the day in question outside of the limit of the town of Salisbury. In the light of such facts, the jury might reasonably conclude that White was an employé of the company, and under its direction and control at the time he arrested the plaintiff, and was acting in the performance of the duty for which the defendant had procured his appointment. We think the jury might have reasonably inferred that White was really the servant and agent of the defendant, appointed for its own special benefit and advantage, and was acting within the scope of his employment as such employé at the time he arrested the plaintiff, although he had been previously appointed a special officer for the town of Salisbury. The capacity in which he was acting, whether as an employé of the company, or as a commissioned officer of the town of Salisbury in the exercise of his powers as such officer, or whether he was acting within the scope of his duty as such employé, were questions, under all the circumstances of the case, proper to be submitted to the jury. Consolidated Railway Company Pierce, 89 Md. 495, 43 Atl. 940; Deck v. Baltimore and Ohio Railroad Company, 100 Md. 185, 59 Atl. 650, 108 Am. St. Rep. 399. The defendant's second prayer asserted that there was no evidence in the case from which the jury could find that the defendant failed to perform all duties owed by it to the plaintiff. It follows, from what we have said, that there was no error in refusing the prayer. The amendment made by the court to the defendant's sixth prayer was proper. That amendment consisted of the insertion of the following words: "And not as the employé of the defendant acting within the scope of his employment." Without this modification, the prayer would have been well calculated to have misled the jury. Nine exceptions were taken by the defendant to the rulings on questions on evidence. The testimony embraced in eight of these exceptions we think was properly admitted, although some of it was not important, and, upon the whole case, even if improperly admitted, we could not say its admission constituted reversible error. The fifth and seventh exceptions are the only ones which seem to be of importance. defendant offered as a part of its evidence the docket of William A. Trader, the police justice of Salisbury, which read as follows: *State of Maryland against T. W. Twilley. July 22. 1905. Charged with being drunk and disorderly on Baltimore, Chesapeake & Atlantic train from Ocean City to Salisbury. Writ Issued to J. C. Kelly, constable. Return, cepi. Defendant appears and pleads guilty, and fined $5 and costs. Costs $2.75. Fine and

The

costs paid, and defendant discharged." The plaintiff had introduced testimony to show what had taken place at the magistrate's office on the morning of July 22, 1905, and this evidence, which was admitted, over the objec tions of the defendant, constitutes the fifth and seventh bills of exceptions. It is argued that this evidence was not admissible for the reason that it contradicted a judicial record, to wit, the docket entries of the justice of the peace which we have quoted. To this objec tion there is a two-fold answer: First, at the time the testimony was admitted there was no such record before the court, and there is nothing to indicate that the court knew of its existence; and, secondly, the proof shows that the plaintiff was not arrested at the station in Salisbury for the offense mentioned in the docket entries. The magistrate's docket shows that the plaintiff pleaded guilty to the charge of "being drunk and disorderly on Baltimore, Chesapeake & Atlantic train from Ocean City to Salisbury." He was arrested in Salisbury for cursing Kelly and interfering with the other officers, according to the testimony of Kelly.

After a careful consideration of the record, we fail to find any error in the rulings of the lower court, and the judgment will therefore be affirmed.

Judgment affirmed, with costs to the appellee above and below.

(106 Md. 268)

STATE. CENTRAL TRUST CO. CENTRAL TRUST CO v. STATE. (Court of Appeals of Maryland. June 25, 1907.)

1. TAXATION-CORPORATIONS-TAX ON GROSS

RECEIPTS.

Code Pub. Gen. Laws 1904, art. 81, § 164, imposing an annual tax of 2 per cent. on the gross receipts of every domestic, safe deposit, trust, guaranty, and fidelity company, when considered in connection with section 165, requiring each corporation to make a verified report on or before a specified day in each year of "its total receipts or revenues," to enable the tax commissioner to assess the tax, and section 168. empowering the tax commissioner to examine any officer of any company touching its business, etc., imposes a tax on the gross receipts of a corporation incorporated by Acts 1898, p. 966, c. 369, as amended by Acts 1900, p. 59, c. €3, and Acts 1902, p. 520, c. 366, and empowered thereby to receive money on deposit, and other articles for safe-keeping, to act as agent for persons engaged in the purchase, mortgage, or sale of real estate, to deal for its own account in all kinds of property, to execute trusts, serve as executor or administrator, etc. 2. SAME-RECOVERY OF GROSS RECEIPTS TAX

-EVIDENCE-ADMISSIBILITY.

In an action to recover the annual tax imposed by Code Pub. Gen. Laws 1904, art. 81, 164, imposing an annual tax of 2 per cent. on the gross receipts of every domestic, safe deposit, trust, guaranty, and fidelity company, a statement of the sources of the income of the corporation, including returns from investment of portions of its capital, profits on dealings in real estate, and earnings from loans, etc., was inadmissible; the company being liable to a 2 per cent. tax on its gross earnings.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.

German H. H. Emory, Atty. Gen., Wm. S. Bryan, Jr., and Alonzo L. Miles, for the State. Stewart S. Janney, Edgar H. Gans, and Arthur Geo. Brown, for Central Trust Company of Maryland.

SCHMUCKER, J. The cross-appeals in this case are from a judgment of the court of common pleas of Baltimore City in favor of the state of Maryland, against the Central Trust Company of Maryland. The suit was brought by the state to recover from the trust company the taxes due by it, under sections 164 to 171 of article 81 of the Code of 1904, on its gross receipts for the years 1893, 1894, and 1895. The case was tried before the court without a jury, and the trial resulted in a verdict and judgment for the state for a sum less than that claimed by it, and both parties appealed.

There is no dispute as to the facts of the case. They appear from agreements of the parties and documentary evidence contained in the record, although there is an exception, to be hereafter noticed, to the admissibility in evidence of certain facts which were admitted subject to exception. The trust company was originally incorporated by Acts 1898, p. 966, c. 369, under the name of the "Old Line Real Estate & Trust Company." Under that charter, it was granted very broad powers, including the power to receive money on deposit, to receive other articles for storage and safe-keeping, to act as agent for all persons or corporations engaged in the purchase, mortgage, or sale of real estate, to deal for its own account in all description of property, real, personal, or mixed, to execute all manner of trusts, to serve as executor, administrator, guardian, receiver, trustee, or committee either under appointment of court or act of any person, to guaranty the validity of titles, the security of investments, and the payment of obligations, and to take, have, hold, sell, grant, mortgage, lease, and dispose of, at its pleasure, all property of every kind, real, personal, and mixed, obtained by the investment of its capital or which might come to its hands in the course of its dealings. By chapter 63, p. 59, of the Acts of 1900, the charter of the company was amended, and its name changed to the "Central Real Estate & Trust Company of Maryland," and it was by that name authorized to enjoy all the rights and exercise all the powers and functions conferred on it by its original charter, and also certain additional powers relating chiefly to the improvement and de

that connection. By chapter 366, p. 520, of the Acts of 1902, its charter was again amended so as to change its name to the "Central Trust Company of Maryland"; but no further change was made in its corporate powers. The company organized under its original charter in March, 1899, and has since then maintained its corporate existence and carried on business with its office in Baltimore City. By section 164 of article 81 of the Code, a state tax, as a franchise tax, is levied annually upon the gross receipts of certain specified classes of corporations doing business in this state. In one of the classes are included safe deposit, trust, guaranty, and fidelity companies, on which the tax is fixed at 2 per centum annually "upon the gross receipts or earnings." Section 165 requires every corporation liable to the gross receipts tax to make an annual report to the state tax commissioner, "showing its total receipts or revenues accruing from business done in this state for the year ending on the preceding thirty-first day of January," and makes it the duty of the commissioner "to calculate the state tax due from such corporation or company on its gross receipts or revenues aforesaid for such year." Other sections of article 81 authorize an appeal by the corporation to the Comptroller and Treasurer from the ascertainment by the tax commissioner of the amount of the tax due by it, and further provide that, if there be no appeal within a specified time, the ascertainment and assessment shall be final, and also impose a penalty of 5 per cent. of the gross receipts for a failure to pay the tax. It is not necessary to state the contents of those sections in detail, because it is admitted by the record that the several steps required by law to be taken in levying the tax imposed by section 164 upon corporations liable thereto were taken in the present case.

The defendant on its brief admits "that it is liable to the tax on its gross receipts or earnings from the exercise of any franchise it may have to do any of the particular sorts of business specified in the act, but denies that the tax is payable on the returns from the investment of its capital in real estate, or in the stocks or bonds of other corporations, or on its receipts or earnings from the exercise of a power to engage in other lines of business than those specified." The state insists that it was the intention of sections 164 and 165 to impose the tax therein provided for upon the gross receipts or earnings of certain classes of corporations, and that the defendant answers to the description of that class, mentioned in the section, which includes safe deposit, trust, guaranty, and fidelity companies, and therefore it is liable for the tax imposed on that class of 2 per cent. per annum upon the gross receipts and earnings accruing from its entire business

in this state. The state also contends that, in this suit by it to recover the tax from the defendant corporation as calculated by the state tax commissioner, from whose action no appeal was taken, the court was without authority to alter the amount as calculated by him; and that, as the commissioner's calculation of the tax was based upon the amount of the gross receipts or earnings of the corporation as certified to him under the oath of its proper officer, it cannot be permitted to introduce evidence, when sued for the tax by the state, to alter or vary the amount of the gross receipts or earnings so certified by it to the commissioner.

No question of the constitutionality or validity of the law imposing the tax is raised by these conflicting contentions; nor does the trust company deny its liability, except for one year, for the payment of some tax on its receipts. It simply contests the extent of its liability. The question presented for our determination by the cross-appeals is one of the construction of the sections of the Code imposing the tax, and is, after all, a narrow one. It is whether by the enactment of those sections the Legislature intended to tax each member of certain designated classes of corporations at one specified rate on all of its receipts, or to tax it on segregated portions of its receipts at different rates according to the kind of business from which they respectively came. If the construction contended for by the state be adopted, it is only necessary to determine to which one of the designated classes the defendant belongs, and when that has been ascertained it is liable for the tax, at the rate prescribed for that class, upon all of its earnings of every kind, no matter from what source they came. If, ou the other hand, the contention of the defendant be accepted as correct, its gross income must be segregated according to the sources from which it arose, and each portion held liable for the tax at the rate imposed upon the kind of business from which it arose, and, if any portion of its income came from occupations not mentioned in the statute, that portion is not liable to any tax.

The intention of a statute is to be primarily ascertained from its words and expressions in their accepted and ordinary sense. Medley v. Williams, 7 Gill. & J. 71; Frazier v. Warfield, 13 Md. 303. The construction must, of course, be upon the entire statute; but when the several parts of it are not contradictory, and "the language is susceptible of a sensible interpretation, it is not to be controlled by any extraneous considerations." Alexander v. Worthington, 5 Md. 485, and note in Brantley's Edition. The Legislature will always be presumed to intend what it has said in plain and clear terms. Talbott v. Fidelity & Casualty Co., 74 Md. 544, 22 Atl. 395, 13 L. R. A. 584; Leonard v. Wiseman, 31 Md. 205; Smith v. State, 66 Md. 215, 7 Atl. 49; Duvall v. Miller, 94 Md. 711, 51 Atl. 570.

Section 164 in plain and clear terms, and by a separate clause, imposes a franchise tax at a specified rate upon the gross receipts of each of the several classes of corporations therein designated. The classification of the corporations liable to the tax, it is true, is based upon the character of the business in which they are respectively engaged, but the rate of tax is made uniform upon the entire gross receipts or earnings of every member of each class. The clause imposing the tax on the class to whose description the defendant answers is as follows: "A state tax as a franchise tax of two per centum is hereby levied annually upon the gross receipts or earnings of every telegraph or cable, express or transportation, telephone, parlor car, sleeping car, safe deposit, trust, guarantee and fidelity company incorporated under any general or special law of this state and doing business therein." This clause, which is complete in itself, is not such as would naturally or reasonably be employed to provide that each of the corporations therein named should be liable to franchise taxes at different rates upon the portions of its gross receipts respectively arising from the several kinds of business in which it engaged. If we turn now to section 165, which requires each corporation to make an annual return to the tax commissioner of its earnings, to enable him to calculate and assess the franchise tax provided for by section 164, we find this language used: "It shall be the duty of each and every railroad safe deposit,

com

trust. guarantee and fidelity pany incorporated under any general or special act of this state and doing business in this state on or before the fifteenth day of April in each and every year to make a report under oath of its president, treasurer or other proper officer to the State Tax Commissioner showing its total receipts or revenues accruing from business done in this state for the year." The commissioner is then directed to file the report in his office, and before a stated day to calculate the amount of the tax due by the corporation on its gross receipts, and transmit it to the Comptroller for collection. All that the corporation is required to report is its total gross receipts. No subdivision thereof or specification of its sources is called for. It is obvious that no such report would furnish the tax commissioner the requisite information to calculate the amount of tax due at different rates upon the portions of the corporation's gross income arising from different kinds of business conducted by it. Without referring in detail to the provisions of the other sections of the law, relative to the imposition and collection of the gross receipts tax provided for by section 164, it is sufficient to say that the expressions used in them are appropriate to, and evidently contemplate, the report to the tax commissioner from each corporation of only the total amount of its gross earn

ings from business in this state, and those expressions are inconsistent with the defendant's theory that a corporation liable to the payment of the gross receipts tax is to pay different rates of taxes upon the several portions of those receipts derived from the different branches of its business. Section 168 authorizes and empowers the tax commissioner, in his discretion, to examine under oath any officer or agent of any corporation liable to the payment of the tax or any other person believed to have knowledge on the subject touching its business in this state, and the receipts and revenues accruing therefrom; but the manifest purpose of that power is to enable him to satisfy himself of the accuracy of the report made to him of gross profits, and perhaps, also, to facilitate, in doubtful cases, the classification of the company.

The name of a corporation affords some indication of its true character, especially when the name, as in this case, is the result of several amendments of the one under which it was incorporated. The powers granted by its charter afford another partial test of its character. But, as we said in State v. German Savings Bank, 103 Md. 205, 63 Atl. 481, its true character can only be determined by the nature of the transactions of which its business consists. The enumeration of the forms of transactions which may be regarded as germane to the purposes of the modern trust company is by no means a simple task. If we consider the problem from the standpoint of the variety of transactions in which, as a matter of common knowledge, that class of corporations currently engage, "trust company" might almost be regarded as nomen generalissimum for financlal and promoting companies. If, on the other hand, we turn to the enumeration of the powers contained in the charters of such companies granted by the Legislature and appearing upon the face of the published laws in and about the year 1890, when the act was passed making those companies liable to the tax on their gross receipts, the task is not much simplified. That the Legislature of 1890 was aware of the multiform activity of a modern trust company is apparent, not only from the charters granted to such companies at that period, but also from the fact that by chapter 272 of the acts of that year it repealed the provisions of the Code theretofore existing for the formation of trust and guaranty companies, saying, in the preamble to the repealing act: "Whereas, since the passage of the act of 1876, chapter 269, * * it has been found that trust companies and guarantee companies, of the kind which now exist, could not be formed under it with the powers requisite for such corporations, by reason of the indefiniteness and incompleteness in that respect of the said act, which does not provide for the creation of corporations of the same general character as those

which now exist as aforesaid, and it has therefore been necessary for the General Assembly from time to time to incorporate such companies by special act." The titles "trust company," and its associates, "safe deposit and fidelity and guarantee companies," would, we think, for the purposes of the gross receipts tax now under consideration, be given their accepted and ordinary meaning by holding to be appropriate, to corporations bearing those names, all kinds of business which fairly fall within the powers usually found in their charters or currently conducted by them.

The sections 164 to 171, imposing the tax with which we are now dealing, are much broader in their terms than section 89, which, as section 86 of article 81 of the Code of Public General Laws of 1888, was before us in the case of State v. German Savings Bank, supra. The tax imposed by section 89 is not upon the gross receipts or the total income of the corporations falling within its operation, but simply upon "the amount of deposits" held by them. The German Savings Bank, after having for many years conducted a savings bank, began, under an amendment of its charter, to do also a general banking business, and we held in our opinion that the fact that under its enlarged powers it incidentally did some general banking would not relieve the deposits received in connection with its savings bank business from liability to the tax on deposits. We further held in that case that, if the bank had in fact abandoned its savings bank business, and was conducting a general banking business, it would thereafter be liable to taxation under the other sections of the Code applicable to banks of that description. We see nothing in the opinion in that case inconsistent with the conclusions at which we have arrived in the present one. Nor is there any conflict between the views here expressed by us and our opinion in the case of Real Estate Trust Co. v. Union Trust Co., 102 Md. 41, 61 Atl. 228. In that case it appeared that the Union Trust Company under its charter also conducted a banking business as a separate department of its activity. Certain moneys having come to the hands of the company in its capacity of trustee from a foreclosure by it of a mortgage, these moneys were deposited by it in its banking department, which allowed interest on the deposit at 2 per cent. In a suit against the company by the parties entitled to the fund, an effort was made to charge the company with interest on these deposits at 6 per cent., upon the ground that it as trustee had used for its own purposes the trust fund while in its hands. We there held that, the company being clothed with authority to carry on a banking business and receive therein deposits from others, it could take a deposit from itself in its capacity of trustee, saying in that connection: "The trustee, according to the testimony, never used a dollar of the funds, and there was no time when