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constitutionality of a measure depends not on the degree of its exercise, but on its principle. This vital power may be abused; but the Constitution of the United States was not intended to be the corrective for every abuse of power which may be committed by State governments. The interest, wisdom, and justice or the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against excessive and unjust taxation, as well as against unwise and unjust legislation generally."
And the same principle was again distinctly affirmed in Bank of Commerce v. New York City, 2 Black., 620, 630, where it is said that uniformity of taxation is a restraint self-imposed by the State, and that the State, in the exercise of the power, may discriminate so as to destroy; and these questions are asked and answered: "But is this court a fit tribunal to sit in judgment upon the question whether the legislature of a State has exercised its taxing power wisely or unwisely over objects of taxation, confessedly, as the argument assumes, within its discretion? And is the question a judicial question? We think not."
A still more remarkable instance where the power to tax was confessedly used as a power to destroy, is found in the law of Congress taxing the circulation of the State banks, the constitutionality of which was upheld by this court in Veazie Bank v. Fenno, 8 Wallace, 533. It was there decided that Congress might constitutionally resort to the power of taxation as a means of destroying the currency of the States, in order to carry into effect the constitutional powers of the federal government to provide a currency for the whole country.
Another means always at the command of a State, by which to destroy or render valueless the franchise of a corporation of its own creation, was by the creation and fostering of rival institutions of the same kind. This was decided in the celebrated case of the rival bridge charters, Charles River Bridge v. Warren Bridge, 11 Peters, 420. The power of the legislature, which it might always exercise, unless restricted by express words in the charter of the corporation first created, was likened by the court to the power of taxation. At page 547 the chief justice says: "The argument in favor of the proprietors of the Charles River Bridge is the same almost, in words, with that used by the Providence Bank; that is, that the power claimed by the State, if it exists, may be so used as to destroy the value of the franchise they have granted to the corporation. The argument must receive the same answer; and the fact that the power has been already exercised so as to destroy the value of the franchise, cannot in any degree affect the principle. The existence of the power does not and cannot, depend on the circumstance of its having been exercised or not.' See also, Turnpike Co. v. The State, 3 Wallace, 210; Railroad Co. v. Railroad Co., 13 Howard, 71.
Have the stockholders or creditors of the corporation any right. beyond and superior to those possessed by the corporation itself, in
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respect to the reserved power, for the protection of which they can intervene between the State and the corporation, so as to prevent the exercise of a power expressly retained by the act of incorporation, and as a part of the law by which the corporation has its existence? Can a corporation whose existence and all whose franchises are expressly determinable by the power creating it, defeat the exercise of such power by issuing stocks and contracting debts? Can it mortgage itself or its franchise into perpetuity? Can it defeat the reserved power to alter or amend, or prolong its existence, or the existence of its franchises and privileges, indefinitely, without alteration or amendment, by like means? Can it give to its stockholders or creditors rights which itself does not possess? Can a corporation expressly limited by its charter to a duration of twenty years, extend that period to a hundred years by incurring a debt which will require for it that length of time to pay? Can such a corporation prolong its existence and hold and exercise its franchises forever, by contracting a debt which it can never pay? To answer theses questions in the affirmative requires a degree of assurance seldom witnessed. It would be to carry the doctrine of the protection afforded by the Constitution of the United States to the obligation of contracts, to a most unprecedented and alarming length. All reason and authority is against such a solution of the question.
It is a general principle, elementary in its nature, too plain to admit of argument in its support, that no one can transfer to or vest in another a right or title which he himself does not possess. The exceptions to this rule growing out of the doctrine of estoppel, or out of the rules of the law merchant and those governing in some other cases, are purely legal and technical, and have no application to the facts of this case. "The rule which limits the right of the buyer by that of the seller, and subjects the title of the one to every drawback or defect which attached to that of the other, is a general rule, both of law and of reason." Basset v. Nosworthy, 2 Lead. Cases in Equity, 12, 80, note. This rule was applied as between mortgagee and mortgagor in John r. Larson, 28 Wisconsin, 604.
The same rule is recognized by this court in Judson v. Corcoran, 17 Howard, 612, 615, where it is thus stated: "It is certainly true, as a general rule, as above stated, that a purchaser of a chose in action, or of any equitable right, must abide by the case of the person from whom he buys, and will only be entitled to the remedies of the seller."
Speaking of the opposite position, as contended for by stockholders and creditors, the court of Wisconsin say: "This position appears to us to rest in the absurdity that the mortgagor can vest in his mortgagee a greater estate than he had himself. Perhaps the statute may lessen the means of payment of the defendants. So would a fine for homicide, under the police power of the State. But to lessen the means of payment of a contract, is not to impair the obligation of the contract. These defendants took their franchises. and their creditors invested their money, subject to the reserved
power, and suffer no legal wrong when that is exercised." 35 Wis., 578.
No positive or written law can be more public than that found in the constitution of a State, and presumptively none can be more widely known or generally noticed and understood, by persons interested in the legislation and affairs of the State, than the provisions of such a law. "This act is a public act, accessible to all, and supposed to be known to all; and the plaintiffs must, therefore, be presumed to have dealt with the defendants with a full knowledge of their respective rights, whatever those rights may be. Jervis, C. J., in The East Anglian Railways Company v. The Eastern Counties Railway Company, 11 Common Bench (2 J. Scott), 775, 811. 73 English Common Law, 810. Just so it must be said here, that the plaintiffs dealt with the defendant company, or in its stocks and securities, with a full knowledge of the rights of the company, whatever these rights may be, and that coming with such knowledge, and assenting to such rights and disabilities of the company, they must share the legal fate of the company, whatever that fate may be. This was their agreement, and they can not now be permitted to set up the obligation of a contract which they never made, which the State never made with them, nor authorized the company to make, and which the company was especially incapacitated from making. The company could give to its stockholders no perpetual rights to hold their stocks and receive dividends upon them, and the stockholders knew it. Neither could the company give to its mortgagees or bondholders any perpetual rights to hold its franchises in mortgage or to use and enjoy such franchises, beyond the power of the State to alter or repeal, because the company had no such rights to give, and the mortgagees knew it. There was not, therefore, and in the nature of the case could not be, any such contract or obligation of contract as that of the violation of which the plaintiffs complain.
That the repeal of the charter or the dissolution of the corporation, the legislature having authority to do so, would not infringe the obligations of its contracts with its creditors, has already been decided by this court. That the alteration of the charter, authority for that purpose existing, does not do so, is equally clear. In Muma v. The Potomac Company, 8 Peters, 281, 286, the court say: "We are of opinion that the dissolution of the corporation, under the acts of Virginia and Maryland, cannot in any just sense be considered within the clause of the Constitution of the United States on this subject, an impairing of the obligation of the contracts of the company by those states, any more than the death of a private person can be said to impair the obligation of his contracts. The obligation of those contracts survives, and the creditors may enforce their claims against any property belonging to the corporation which has not passed into the hands of bona fide purchasers, but is still held in trust for the company, or for the stockholders thereof, at the time of its dissolution, in any mode permitted by the local laws." This language was approved by the court in Curran v. The State of Arkansas, 15 Howard, 311.
Again, in Pennsylvania College Cases, 13 Wallace, 218: doubtedly the corporate franchises of the two institutions were contracts of the description protected by the clause of the constitution which ordains that no State shall pass any law impairing the obligation of contracts, but the contract involved in such an act of incorporation is a contract between the State and the corporation, and as such the terms of the contract may, as a general rule, be altered, modified or amended by the assent of the corporation, even though the charter contains no such reservation, and there was none existing in any general law of the State at the time the charter was granted. Persons making contracts with a private corporation know that the legislature, even without the assent of the corporation, may amend, alter or modify their charters in all cases where the power to do so is reserved in the charter or in any antecedent general law in operation at the time the charter was granted, and they also know that such amendments, alterations and modifications may, as a general rule, be made by the legislature with the assent of the corporation, even in cases where the charter is unconditional in its terms, and there is no general law of the State containing any such reservation. Such contracts made between individuals and the corporation do not vary or in any manner change or modify the relation between the State and the corporation in respect to the right of the State to alter, modify or amend such charter, as the power to pass such laws depends upon the assent of the corporation or upon some reservation made at the time, as evidenced by some pre-existing general-law, or by an express provision incorporated in the charter."
"The creditors of the bank cannot object to the constitutionality of the act dissolving the corporation, when it was done for causes which by the charter were sufficient for the purpose, and when the repeal was conclusive upon the bank. Indeed, it is not seen how any objectionc an be made by those who had no other connection therewith than that of being creditors. Whoever entered into contracts with it, exposed himself to losses which might arrise from its dissolution, as he would with natural persons, by their death. No security was provided in the charter, or other statue, against such an exposure to injury." Reed v. Frankford Bank, 23 Maine, 318.
"But it is said that the corporation could not, by any act or omission of its own, implicate its stockholders in a liability which they had not consented to assume, and which, on the contrary, they dad declared they would not incur. But they had voluntarily consented to become stockholders upon the conditions held out by the general banking law. One of those conditions was that the legislature might amend and alter the act, and in that way change and modify the constitution of the corporation. A change under this reservation to alter might render their investment more or less profitable, or their position more or less hazardous. Whatever peril it entailed they consented to assume. Stockholders cannot put in a plea non in haec foedera veni." 21 N. Y., 20, 21.
"Every one who enters into such a company is aware of the reservation of the power and of the possibility of its exercise, and
trusts, as in many other matters he must, to the wisdom and justice of the legislature that this power will not be abused." 1 Kernan,
It is confidently submited, therefore, that where the corporation tion itself cannot complain of the exercise of the reserved power to alter or repeal, then no stockholder or creditor can do so, or interpose to set aside the laws of the State constitutionally enacted.
The question whether chapter 273 of the laws of Wisconsin, passed in the year 1874, being the act in question regulating freights and fares, was repealed by section 2 of chapter 292 of the laws of the same year, as submitted in the bill of complaint, is one which belongs to the State court, and which has already been decided by that court adversely to the plaintiffs. So of all other questions of statutory construction raised by the plaintiffs. The Attorney-General v. Railroad Companies, 35 Wisconsin, 425.
And the same is true of the objection that the act in question contravenes the article of the constitution of the State of Wisconsin that "the property of no person shall be taken for public use without just compensation therefor." The court of Wisconsin in the same case, giving a construction to this article of the constitution of the State, has decided that the act does not conflict with it. It is obvious that the exercise by the State of the reserved power to alter or repeal the charter of a corporation bears no more resemblance to the exercise of the right of eminent domain than does the exercise of the power of taxation. In a case of taxation-a Wisconsin case this court has said: "The objection that these acts take private property for public purposes without compensation, and hence are within the prohibition of the State constitution upon that subject, is also without foundation. The clause of the constitution refers solely to the exercise, by the State, of the right of eminent domain." Gilman v. City of Sheboygan, 2 Black., 513.
The inter-state commerce question raised by the bill has been disposed of by this court in a cause decided since the bill was filed. Railroad Company v. Maryland, 21 Wallace, 456. That case directly affirms the right of the State to regulate the rates of tolls and fares on its own roads, canals, and railroads, or those constructed under its authority and within its borders, and that such regulations for passengers or freight to be taken up in the State and carried out of it, or received out of the State and brought into it, are not inconsistent with the provisions of the Constitution of the United States giving to Congress the power to regulate commerce between the States. It is difficult to perceive, at all events, how regulations.