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This is a very just and clear exposition of the meaning and scope of the reserved power, and was early notice to all who might desire to invest in the stock or securities of corporations existing under the laws of Wisconsin, that such corporations were under the absolute control of the legislature, and that their franchises might be restricted or their charters repealed at any time at the will of the legislature.
The adjudication of the courts of the other States and of this court are all in harmony with the interpretation given to the power reserved over corporations in similar language in the laws and constitutions of other States.
In Massachusetts, Crease vs. Babcock, 23 Pick., 334, a bank of which the defendant was a stockholder, had been incorporated with power to repeal, reserved only in case of some violation of the charter, or other default. In that State stockholders were only liable individually on the expiration of the charter, and the defendant insisted that under the clause reserving the right to repeal the charter the default of the bank must first be ascertained and determined by the courts, and until that were done the legislature could not exercise the power of repeal; but the court held that the acceptance of the charter made a compact under which the legislature could repeal, "and the grantees could have no reason to complain of the execution of their own contract." The court also held, that they would presume the contingency upon which the right to repeal depended had happened.
In Roxbury vs. Boston & P. R. R. Co., 6 Cush., 424, the object of the bill was to require the defendant to erect a bridge along the highway over the track of defendant. The defendants resisted on the ground that the legislature could not impose this burden on the company.
On page 433, the court say:
"If this act adds anything or makes more explicit the duty imposed by the act of incorporation, it affects the remedy only, and perhaps would be within the competency of the legislature without any reservation of the power of amendment, but if otherwise it was fully warranted by the reservation made by the statutes of 1830, C., 81."
In Commissioners vs. Holyoke W. P. Co., 104 Mass., 446, the defendants were the owners by purchase of a dam across the Connecticut River, erected by the Hadley Falls Co., under a charter passed in 1848, which provided that the company should pay such damages to the owners of fishing rights then existing above the dam, as might be assessed by the county commissioners, and such damages were duly assessed and paid.
It was proved that since the building of the dam the number of shad below the dam had gradually diminished; that a small but appreciable portion of the decrease was due to the dam.
The commissioners determined that the defendants should put in fish-ways. This they refused to do on the ground that the legislature had no power under the circumstances to require them to put in fish-ways because it would impair the obligation of the contract contained in the charter.
The court say, page 448:
"In England, where the power of the legislature are unfettered by a written constitution, and no act of a prior parliament can abridge the power of a subsequent one, there could be no doubt of the authority to pass a statute requiring the owner of any dam to erect and maintain such fish-ways as commissioners appointed for that purpose might prescribe. 1 Bl. Com., 90, 160, 161; Hodgelon vs. Little, 14 C. B., (N. S.,) 111, 16 C. B., (N. S.,) 198; Rolle vs. Whyte, Law Rep., 3 Q. B,, 286, 306.
In the United States it has been settled for more than half a century by the decision of the Supreme Court that a grant or charter from a State legislature is a contract within the meaning of the articles of the constitution which declare that no State shall pass any law impairing the obligation of contracts. Fletcher vs. Peck, 6 Čranch, 87; Tenett vs. Taylor, 9 Cranch, 43; Dartmouth College vs. Woodward, 4 Wheat., 518. In a still earlier case, Chief Justice Parsons delivering the judgment of this court, clearly stated the true rule, saying: "We are satisfied that the rights legally vested in this or in any corporation cannot be controlled or destroyed by any subsequent statute unless a power for that purpose be reserved to the legislature in the act of incorporation." Nales vs. Stetson, 2 Mass., 143, 146.
But no act of the legislatures is to be declared invalid by the courts as a violation of a paramount and controlling article of the constitution unless the repugnancy between the two is manifest and unavoidable. When a statute has been passed with all the forms requisite to give it the force of law, it must be regarded as valid unless it can be clearly shown to be in conflict with the constitution. Fletcher vs. Peck, 6 Cranch, 87, 128; Dartmouth College vs. Woodward, 4 Wheat., 518, 625; Norwich vs. County Commissioners, 13 Peck, 60."
It will be noticed that in this case the decision in the case of the Essex Co., 13 Gray, 239, is so far modified that it is held that if the fisheries below the dam were injured whilst compensation was made for the fishing rights above the dam, it was competent for the legislature to require that fish-ways be made, notwithstanding the former act of the legislature, provided that the company should be relieved from the burden of making fish-ways on payment of compensation for the fishing rights above the dam, adopting in this respect the views of this court in reference to the case of the Essex Company as expressed in Lyman vs. Holyoke Co., 15 Wal., 500.
In Parker vs. Metropolitan R. R. Co., 109 Mass., 506, the same. question as presented by the case at bar, came before the court for adjudication.
The East-Boston Ferry Company was incorporated in 1852. The charter provided that the company "shall be allowed to collect and receive such tolls as the said mayor and aldermen (of Boston) shall determine; provided, however, that the rates of ferriage shall never be so much reduced as to reduce the yearly dividends of said company to an amount less than eight per cent. on the amount of capital stock actually invested." The rates of ferriage were established 25 R R C-APP.
at three cents for adult passengers, and two cents each for children, by the mayor and aldermen of Boston, by an order passed October 4 1869. The legislature, in 1864, passed an act, chapter 226, § 26, limiting the rate of toll to one cent for each passenger.
By an act passed in 1830, the legislature reserved the right to alter, amend, or repeal every act of incorporation at pleasure.
The court held that the ferry company accepted their charter subject to this reserved power as one of the terms or conditions created by it, and on page 509 say: "The power of regulating tolls upon incorporated ferries, bridges, and turnpikes, has been constantly exercised by the legislature. The great object of such corporations is the accommodation of public travel; and most, if not all, the charters creating them contain provision for the regulation of the tolls they are entitled to charge the public. The charter of the EastBoston Ferry Company contains such provisions. The legislation in question, therefore, is not upon a subject foreign to the provisions of the charter or the objects of the grant. It is strictly an alteration or amendment of such provisions, and it is designed to promote the chief object of the grant.
We have no doubt it was competent for the legislature, under the power reserved to alter or amend this charter, to pass the law we are considering, and that from its passage it fixed the rate of toll which the ferry company was entitled to exact for passengers carried over their ferry in the cars of the defendant."
The acts of incorporation under which the Chicago & Northwestern Railway Company was organized contain provisions in regard to the tolls they are entitled to charge. In Exhibit I, page 31, section 6, confers the right on the company thereby created, "to demand and receive such sum or sums of money for the transportation of persons and property, and for the storage of property, as it shall from time to time deem reasonable."
In exhibit Q, page 35, section 7, the company thereby created is authorized "to regulate the amount of tolls and the manner of collecting the same for such transportation," &c
The right to charge toll is derived from the act of incorporation of this company, and does not exist except by virtue of such acts. Chapter 273, of laws of Wisconsin, 1874, is, in the language of the opinions last cited, "strictly an alteration of such provisions," as confer upon the company the right to charge tolls. It substitutes for the discretion of the company to fix rates. The rates prescribed by the act and those to be fixed by the Railroad Commissioners.
In New York the cases are equally clear and explicit.
In McLaren vs. Rennington, 1 Paige, 102, the legislature of New Jersey had incorporated a bank to continue not exceeding twentyone years, with a proviso that it should be lawful for the legislature at any time to repeal the charter. As a consideration for the charter, $25,000 was paid by the banking company to the State. The bank was organized in June, 1824, paid the $25,000, and commenced operations. In November following, the legislature repealed the act of incorporation, and the court held, Walworth,
chancellor, not only that the power to repeal existed under the reservation, but that the court would not presume it to have been improperly exercised.
In the matter of Oliver Lee Bank, 21st N. Y., 9, the bank was organized in 1844, under the general banking law of 1838, which exempted the stockholders from personal liability and become insolvent in 1857.
The 14th section of the articles of association is in the following words:
The shareholders of this association shall not be liable in their individual capacity for any contract, debt, or engagement of the association," and the certificate of incorporotion contained a similar provision.
The constitution of the State, adopted in 1846, contained a provision imposing personal liability on the stockholders of banks.
The right was reserved in the general banking law of 1838, to alter or repeal it at any time. The court, Denio, justice, page 16, speaking of the reserved power, say: "This, according to one view, is the reservation of a right only to change or repeal it prospectively, from the passage of the modifying or repealing law, so that the association which had been organized in the meantime would remain unaffected by such modification or repeal. On the other hand it is insisted that it enabled the legislature to deal with the associations as though they were directly established by a statute, containing in itself the usual reservation. I am of opinion that the latter is the correct view.
By the revised statutes, the charter of every corporation thereafter to be granted by the legislature, was declared to be subject to alteration, suspension, or repeal, in the discretion of the legislature, (1 R. S., 600, 8.) This provision incorporated itself into and became a part of every special charter which was itself silent as to the power of repeal or change."
After holding that the adoption of the constitution of 1848, containing the provision which imposed personal liability, was an alteration of the charter of the Oliver Lee Bank, on the question as to the right of the State to impose personal liability on the stockholders without their consent, the court say, page 21:
"But they had voluntarily consented to become stockholders, upon the conditions held out by the general banking law; one of these 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 and their position more or less hazardous. Whatever perils it entailed they consented to assume. Stockholders cannot put in the plea, non hic fædera veni; for although they have not by a direct act become parties to the contracts of the association, they have conferred powers upon others to contract to a limited extent in their behalf. In the first place, they have empowered the corporation to affect their individual interests to the extent of the corporate authority, and then they have agreed that the corporate power may be changed by the legisla
The superadded liability is as clearly within their contract as that incurred in the first instance, for it has been incurred according to an arrangement to which they were parties. In the two cases referred to in Kernan reports, (1 Kern., 102; 4 Kern., 336,) the defendants insisted that they had never contracted to embark their money in the enterprises which were being actually prosecuted by the directors, but the answer which this court gave was that they had voluntarily embarked their credit in corporations whose powers were liable to be enlarged by the legislature."
In the matter of the Reciprocity Bank, 22 N. Y. 9. This bank was incorporated in 1834. By a special charter which contained a provision that the legislature might "at any time alter, modify, or repeal the same," no personal liability was imposed on the stockholder by the original charter. The same question was presented as in the Oliver Lee Bank case, supra, whether the constitution of 1846 and general statute of 1849 had the effect to alter the charter and impose upon the stockholders personal liability for the corporate debts. Referring to the case of the Oliver Lee Bank, the court say, page 3:
"In holding that a personal liability could be lawfully imposed upon the shareholders of that bank, the decision was placed upon the reserved right to alter or repeal the general act under which it was organized. In the present case, as well as in that, the exercise by the legislature of the power in question is certainly none the less effectual because it has the super-added sanction of a constitutional provision. Nor can a constitutional provision, declaratory of a change in the principles of a corporate organization, be said to affect or impair a charter which, in its own terms, admits of the very change declared. If the legislature, in pursuance of a right reserved, may alter or repeal the charter of a corporation without violating the obligation of a contract, the same thing, I apprehend, may be done by the people when they establish the fundamental law of the State."
The alteration in the last two cases cited was of a vital character, when it is considered that profit is the controlling motive which induces investment in the stock and securities of corporations; here was a burden of personal liability imposed which might be and was of a very onerous and perhaps ruinous character to the stockholders. Not only was the money invested in the stock lost, but they were called upon to part with a portion of their fortunes which they never intended to place in jeopardy by becoming stockholders. In the first case, to the suggestion that if the stockholders did not desire to take the risk of the new and extended liability imposed, they might surrender their franchise and stop business. It was answered that the parties litigating before the court were a minority of the stockholders and were powerless to prevent a continuance of the business of the bank as against the determination of the majority of the stockholders. To this it was replied that that was one of the risks assumed in becoming stockholders and they could not complain that one of the conditions of the agreement they had