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said that by virtue of this reserved power, the legislature may at any time repeal the charter, and thereby put an end, not only to the corporation, but also to the franchise to operate the road, and thus render the property practically worthless.
Of course, such an exercise of the reserved power, with such consequences, would be justified only on the ground that the public benefit required it. If so, the logical sequence would seem to be, that the State should pay the owners for the property thus taken or destroyed, and, under the provisions of the constitution already cited, this court would be bound to hold any law effecting such a result unconstitutional and void, unless accompanied with provisions for ascertaining and paying for the property thus destroyed. But it is denied that any such consequence could or would result from the repeal of the charter. The grant to build, own and operate a railroad, in the case at bar, by the State of Wisconsin, was to the Madison and Beloit Railroad Company. Its name was subsequently changed to the Rock River Valley Union Railroad Company. This company mortgaged its road and franchises under the provisions of the statute above cited. The mortgage was foreclosed, and the purchasers formed and organized the Chicago, St. Paul and Fond du Lac Railroad Company. This company also mortgaged its line of road and franchises, which was foreclosed and sold, and the purchasers formed and organized the present company, the Chicago and Northwestern Railway Company. The Madison and Beloit Railroad Company, and the Chicago, St. Paul and Fond du Lac Railroad Company, have long ceased to exist as corporations, but their road, which was once their property, is an existing fact-is an estate owned by the Chicago and Northwestern Railway Company, and which it now operates by virtue of the franchise originally granted to the Madison and Beloit Railroad Company. No other franchise has ever been granted for that purpose. But the original one has been transmuted, through all these various changes to the present company, as a part of the property authorized to be mortgaged and conveyed. Great numbers of persons, on the faith and credit of the legislation of the State, have invested their fortunes in the bonds issued by these several companies, and in the stock of the present company, relying for a return to that investment on the road constructed with the franchise to be operated in accordance with the original grant upon which it was built and has been transferred to its present owners. Nearly the whole value. of the property consists in this franchise to operate the road in pursuance of the original grant. Yet, it is contended, that the legislature, by the repeal of the charter granted to the Madison and Beloit Railroad Company, a corporation which long since ceased to exist for any purpose, would thereby repeal all right which the present company has to operate said road, and practically destroy the whole property. The doctrine is monstrous, and we deny it in toto, and insist that the right granted by the State to build, own, run and operate this road for the transportation of freight and passengers, for hire, according to the original grant, is a franchise and right that inheres in the property, and is irrepeala
ble and indestructible, and that it belongs to the owners of the property as a vested right in the property, and cannot be disturbed by the action of the legislature under the reserved power, or in any other manner. That it is not affected by the repeal of the original charter; nor would it be by the repeal of the charter of the present company, for it would then exist in the shareholders as the owners of the property, and as a part thereof.
What was it that our legislature intended should be mortgaged, by the law above quoted, or sold by voluntary sale when authorized? Was it a railroad without the right to operate or use it? or was it a road possessing franchises to be operated and used according to the grant under which it was built? Certainly the latter. Any other construction would operate as a fraud, and a cheat upon the purchaser. The original company could exist without its property; so, too, it could die, without destroying the property. City of Bridgeport vs. N. Y., N. Haven R. R., 36 Conn., 266; Coe vs. Columbus, &c., 10 Ohio State, 374; Atkinson vs. Mariettta, &c., R. R., 15 Ohio State, 36.
But it is answered that the bondholders and all other parties, took their interest and made their investment in this property with full knowledge of the reserved power. It is true they took it with knowledge of the provisions of the constitution and of all those provisions. But not with knowledge of such a construction as is now attempted. No ordinary foresight could guard against such an exercise of such a power. And if such a construction of this power is possible, then we say,
"O, it is excellent to have a giant's strength: but it is tyrannous
To use it like a giant."
We insist that on the sale of a railroad by the owner, all the estate as above described, with the full right to fix the compensation for its use and enjoyment would pass to the purchaser, regardless of what might be the fate of the particular corporation that constructed it. The reserved power, may have been exercised to its full extent, by the repeal of the charter of such original company. Yet the property would survive, endowed with all its original capacity, and attributes, which would inhere to it as property, and the new owner would have the same right to use, operate and enjoy it that was granted to the original corporators. Coe vs. Columbus, Piqua, Ind. R. R. Co., 10 Ohio State, 377-386; Hall vs. Sullivan R. R. Co., 22 Law Rep. 138 to 140 Redfield, 571; Bank, of Middlebury vs. Edgerton, 30 Vermont, 182 to 190.
In all cases of the transfer of railroads, whether by voluntary conveyance, or by operation of law, the right to make profit of the use of the railroad is so connected with the real estate of the corporators, that by and with the sale and transfer of the roadway, the right of the original company to take compensation passes to the purchaser, unaffected by the fate of the original company. And if by the original charter, any limitations or restrictions were imposed upon this right, they inhere in the property and control it in the hands of the purchaser. Commonwealth vs. Canal Co., 66 Pa. 41;
Atkinson et. al. vs. Marietta R. R. Co., 15, Ohio State 36; Johnson vs. Hamilton, 23 Ohio State, 168 to 187; Commonwealth vs. Central Pass. Ry., 52, Pa. 506; Phil. & Wilm. R. R. Co. vs. Maryland, 10 How. 376.
Under the laws of Massachusetts, since, 1831, all acts of incorporation are "at all times subject to amendment, alteration, or repeal, at the pleasure of the legislature," yet the courts have uniformly held that this power has some limits. In Commonwealth vs. Essex Co., 13 Gray, p. 253, this question came before the supreme court of Massachusetts. The case was an indictment against the Essex Company for neglecting to make and maintain around their dam across the Merrimac River, at Lawrence, a suitable and sufficient fish-way for the usual and unobstructed passage of fish. The company had built fish-ways in accordance with the terms of the charter, and had settled certain claims for damage of some of the owners of the fisheries, as required by their charter in 1847-8. Subsequently the legislature passed an act in 1856, requiring the company to build further fish-ways, and the indictment was for the neglect of the company to comply with its terms. Chief Justice Shaw delivered the opinion of the court, and held the law null and void as in violation of vested rights, and said in reference to this reserved power: "It seems to us that this power should have some limit, though it is difficult to define it. Perhaps the true rule is this: That where under power in a charter, rights have been acquired and become vested, no amendment or alteration of the charter can take away the property or rights which have become vested under a legitimate exercise of the powers granted."
In Commissioners, &c., vs. Holyoke, &c., 104 Mass., p. 451, it is held that the law does not reserve to the legislature authority to so alter or amend a charter as to defeat or substantially impair the object of the grant, or any rights which have vested under it.
The same principle is recognized in Kentucky: "A reservation in a legislative charter of the power to alter, amend, or repeal, does not imply the power to alter the vested rights acquired by the corporators under the charter, and to add new parties and managers without the consent of the corporators."
In this case, the legislature incorporated the Western Baptist Theological Institute, making Cave Johnson and six others corporators, and the board of trustees was fixed at thirty-six. The last section of the charter declared that any future legislature might alter, amend, or repeal the act whenever they might think right or proper to do so. Subsequently, in 1848, the legislature passed an amendatory act, increasing the number of trustees to fifty-two, and appointing sixteen new trustees, and appointed by name the sixteen additional trustees, and required that all trustees thereafter appointed should be citizens of Kentucky. The court held the amendment unauthorized, and say:
"In our opinion the act of the legislature creating sixteen new trustees, without the consent of the board, is not an act coming within the scope and meaning of the power reserved in the act. As it seems to us, the passage of this act was not so much the exercise
of a legislative function as it was the exercise of the ministerial functions pertaining exclusively to the board of trustees. It is an act not changing or amending the mode or manner in which the trustees to whom had been given by the founder of the charity, the supervision and visitorial power of the institute, but it is an act by which this supervision and visitorial power is substantially taken away and conferred upon others. True, the legislature may, by virtue of the reservation, repeal or destroy, but the power to destroy does not imply a right to cripple or to maim."
In Allen vs. McKeon, 1 Sumner, 276, Judge Story quotes the reserved power of the charter as follows: "the legislature may grant further powers to, or limit, annul, or restrain any of the powers by this act vested with the corporation, as shall be judged necessary to promote the best interests of the college," and then says, "whatever it may do, then, must be done to promote the best interest of the college. It is true, that it is constituted the sole judge. What is the best interest of the college, but still it cannot do anything pointedly destructive of that interest. Its authority is confined to the enlarging, altering, annulling or restraining of the powers of the corporation. It cannot intermeddle with its property."
In Miller vs. State, 15 Wallace, 478, the same question was presented. The case arose in the State of New York, and after judgment in the court of appeals, went to the Federal court on error, upon a question involving the constitutionality of an act of the legislature. In New York there was the same constitutional reservations relative to incorporations as in Wisconsin. One of the judges of the State court, in defining the extent of such reserved powers, uses the following language: "The legislature which creates the artificial body must necessarily have power to prescribe the organs through which it shall act. But this is a different thing from arbitrarily taking possession of the corporation itself, and through it the property of the parties for whose benefit the corpo ration was created. They cannot be presumed to have anticipated that a charter giving them the privilege of managing their property, for their own benefit, in a certain way, could be transferred by this reserved power of amendment into a vehicle which should transfer from them to the State or its appointees all control over the property which they have invested in the corporate enterprise. To hold such a doctrine would be to place all property invested in corporate enterprises beyond the pale of the protection of the federal constitution. Such an act would approach nearer to one of confiscation than of legislation."
Has the legislature of Wisconsin attempted less than this?
On page 498, 15 Wallace, Mr. Justice Clifford says: "Power to legislate, founded on such reservation in a charter to a private corporation, is certainly without limit, and it may well be admitted that it cannot be exercised to take away or destroy rights acquired by virtue of such a charter, and which, by a legitimate use of the powers granted, have become vested in the corporation."
In 21 Grattan, 593, the court held the power is limited, and that the corporation cannot be forced to accept the amendment, but
may cease to do business as a corporation. In Miller vs. N. Y. and Erie R. R., 21 Barbour, 513, the court held that an act requiring the company to give the land and make a road across the track was unconstitutional, as depriving the company of its property without compensation.
The same doctrine was held in 66 Penn., 41. In Commonwealth vs. Canal Company. See also Cooley's Constitutional Limitations, 577 and 8.
Such a reservation will not warrant the legislature in passing laws to change the control of an institution from one religious sect to another, or to divert the fund of the donors to any new use inconsistent with the intent and purpose of the charter, or to compel subscribers of stock, whose subscription is conditional, to waive any of the conditions of their contract. Zabriskie vs. Railroad Co., 3 C. E. Green, 180; Railroad vs. Veazie, 39 Maine, 587.
3d. Nor can the company be deprived of its property, or the benefits thereof, acquired under a legitimate use of the exercise of powers granted by the charter.
It has already been shown that for the State to take the property of a corporation for the public benefit, under a pretended exercise of this reserve power, without making just compensation, would be a violation of section 13 article 1, of the Constitution.
That to deprive the corporation of its property, without due process of law, would be in violation of section 1, article 14, of the amendments to the Constitution of the United States.
It has also been shown that the effect of this law is to deprive the company of thirty per cent. of its gross earnings, amounting to at least one million of dollars per annum. The whole amount of the net revenue of the road in Wisconsin, and that the only value of a road to its owners is to produce net revenue. Therefore, it is clear, that this law does for the time being, deprive the owners of all beneficial use of their property, which is a taking or depriving them of their property. But it is claimed that this taking of the beneficial use of the property, and depriving the owner of all income therefrom, is not a taking of the property, or depriving the owner of it. Chief Justice Ryan says:
"It was said that chapter 273 violates the rights of property of these defendants. We cannot perceive that it does. Whether it will lessen the income of their property, we cannot forsee. We only know that it does lessen their rates of toll. But it does not wrongfully touch their property. As far as the franchise is to be considered property, it was subject to this very limitation, and the limitation is the exercise of a right over it, which does not violate it. The right of limitation entered into the property, and qualified it. And the act does not at all meddle with the material property, distinct from the franchise. It acts only on the franchise, not at all upon the material property. And it is sufficient to say that they acquired the material property, as distinct from the franchise, subject to the alteration of the franchise under the reserved power. That was a condition under which they chose to hold their property,