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rely, for the perpetuity and integrity of the franchise granted to them, solely upon the faith of the sovereign grantor. Hence, since the decision of the Dartmouth College case, some of the States, and our own among the number, have, by constitutional provision, reserved to their legislatures the right of modification or repeal of all special acts of incorporation; and all such corporations now rest upon the faith of the State, taking care to deserve its favor, or command its justice, by observing strictly the limit of their powers, and accomplishing by all legitimate means the objects of their creation. * But is it not obvious that such corporations may hold and exercise such power only at the will of the legislature, circumscribed either by fundamental law or by the particular act of incorporation? Sometimes the grant of such franchises is in perpetuity; sometimes for a given number of years; and sometimes during the pleasure of the sovereign grantor. But by whatever mode, or at whatever time, the franchise is determinable, it is nevertheless dependent upon the sovereign power, at its will, constitutionally expressed. While the corporate existence and franchises remain, all acts done in conformity therewith are lawful; but on their extinction, either by lapse of time or by the sovereign mandate, the acts which were before lawful become unlawful, and the powers and franchises are resumed by the government. The latter in effect declares that the public good or necessity no longer requires the exercise of those powers, and the agency of the corporation through which they have been exercised is thenceforth dispensed with."
The same doctrine was distinctly recognized in Nazro vs. Merchant's Mutual Insurance Company, 14 Wis., 295, 299, decided in
And again, the reason for the constitutional reservation and the effect of it were similarly explained and affirmed in Kenosha, Rockford and Rock Island Railroad Company vs Marsh, 17 Wis., p. 16, decided in 1863.
In Whiting vs. The Sheboygan & Fond du Lac Railroad Company, 25 Wis., 197, 198, 202, decided in 1870, the court say that "under the principles announced in the Dartmouth College case, and in the numerous cases which have followed it in the same court, and by the authority of which the courts of all the States are bound, this power of the State to regulate and control the franchises and fix the amount of tolls has frequently been wholly lost. But be this matter as it may in other States, the question can never arise in this State. Our people by a most wise and beneficent provision in their constitution, have perpetually reserved the power to the legislature to alter or repeal all charters or acts of incorporation at any time after their passage. * * * As yet we believe, the power has never been exercised with respect to any railroad company organized in this State, and possibly it may never be. It is valuable, however, as a check upon the rapacity which these corporations sometimes exhibit, and the time may come when the legislature will be imperiously required to exert it; but when it does, if ever, it will not be to deprived the corporation or its stockholders
of their legitimate rights, but to correct abuses and save the rights of the people. The legislature will not reduce the tolls or rates to an unreasonably low figure, or so as to disappoint the just expectations of the owners of stock."
In State v. Milwaukee Gas Light Company, 29 Wis., 461, 462, decided in 1875, speaking of an exclusive privilege which had been conferred upon the Gas Light Company to supply the city with gas, the court say: "Of course, the whole matter, under our constitution, is under the control of the legislature, which can take away from the defendant his exclusive privilege whenever it sees fit to do so." Again: "The legislature retains control over such charters in this State, and has the power to take away any exclusive privilege or franchise which it may have improvidently granted."
Again in 1874, the extent of the reserved power was involved and under consideration in The West Wisconsin Railroad Co. v. The Board of Supervisors of Trempealeau County, 35 Wis. 257, and the unqualified right of the legislature to alter and repeal any and every corporate franchise and privilege, was broadly asserted and affirmed.
And lastly, in The Attorney-General v. Railroad, 35 Wis. 425, in an opinion remarkable for its learning and ability, this question was once more fully considered with respect to the very act here complained of, and the act was determined by the court to be a proper and valid exercise of the reserved power contained in the constitution. The court (p. 576) say: "The reserved power in our constitution is a positive provision entering into all charters under it, and must be construed as written. We cannot construe away its meaning, or hold it to mean something else, which we or others might consider wiser or better. We are bound, in our construction of it, by the very words used. We refer to a large number of cases on this point, collated in Bluffham v. City of Racine, 26 Wis. 451 to 465. The power is limited by its own words only. Any limitation of it must come from those words. And we must be guided in our construction of the words used, if the words will admit of it, by the purpose of the provision, to do away in this State, the rule in the Dartmouth College case, so far as it relates to charters of private corporations. The power to repeal can bear but one construction; nor, if its use, the word has but one meaning. The power to alter depends on the meaning of the word alter. To alter is to make different, without destroying identity (Crabb); to vary without entire change (Webster and Imp. Dict.) A corporate charter of one kind cannot be altered to a charter of an entirely different kind. But a corporate charter may be altered so as to make it different in detail, so long as the general identity of the corporation remains; so that it is varied without entire change. This is the obvious meaning to lawyer or layman. Arguments ab inconvenienti cannot weigh against the manifest meaning of the word used; they may go to impeach the wisdom of the power, but not to impair its import."
Such is, and from the earliest period of time has been, the clear and uniform course of opinion and decision of the Supreme Court of
Wisconsin, by which, long before the bonds and stocks in question were issued, this clause of the constitution of the State had received a well established and well known judicial construction. The clause was itself fair notice, beforehand, of the public right to alter or repeal at discretion. The judicial decision of the highest court of the State made such notice still more clear and emphatic. All were purchasers of the stocks and bonds with notice. It is not claimed, and cannot be, that this clause of the State Constitution violates or in any manner conflicts with any article or provision of the Federal Constitution; and where such is the case, nothing is better settled by the decision of this court than that this court will adopt and be governed by the construction given by the court of the State to its own written constitution. The same rule extends, under the circumstances, to the judicial construction given by the State court to a State statute. It is the function of the State court, and not of this court, in all such cases, to interpret and expound its constitution and laws, and this court receives them as thus interpreted and expounded, and gives them the same force and effect which they have in the State, or before the judicial tribunals of the State. It is respectfully submitted, therefore, that the interpretation given by the Court of Wisconsin to the provision of the written Constitution of the State here under consideration, must be followed by this court, and is decisive of this question.
In this court the same construction has been given to the same words, and the scope and operation of the reserved power has been held the same, whether contained in a special act by which a corporation has been created, a general law of the State applicable to all future acts of incorporation, unless speciaily excepted, or, as in this instance, in the constitution of the State by which the legislature is bound, and under which no unalterable or irrepealable charter can be granted. The question has been several times before this court, and always with one result. The exercise of the reserved power has invariably been sustained.
It is a historical fact, familiar to all who have given the subject any attention and study, that one principal object of reserving the power to alter or repeal is, and always has been, so far as it concerns railroad companies, turn-pike, plank-road or ferry companies, and other like corporations performing public or quasi public functions, and upon which certain public rights and franchises are conferred, to enable the legislature at any future time to regulate and restrict the tolls and fares to be demanded by such corporations. The reserved power is and ever has been regarded by the State and the people, with respect to such corporations, as chiefly valuable because it gave to the legislature this right; and accordingly we find this court, in Olcott v. The Supervisors, 16 Wallace, 678, 694 which was a Wisconsin case, and where the court was speaking of the very clause of the State constitution now involved, using the following language: "That the legislature of Wisconsin may alter or repeal the charter granted to the Sheboygan and Fond du Lac Railroad Company, is certain. This is a power reserved by the constitution. The railroad can, therefore, be controlled and regu
lated by the State. Its use can be defined; its tolls and rates for transportation may be limited."
In Pennsylvania College Cases, 13 Wallace, 119, 230, the operation and effect of the reservation is thus stated by the court: "Cases often arise where the legislature, in granting an act of incorporation for a private purpose, either make the duration of the charter conditional, or reserve to the State the power to alter, modify or repeal the same at pleasure. Where such a provision is incorporated in the charter, it is clear that it qualifies the grant, and that the subsequent exercise of the reserved power cannot be regarded as an act within the prohibition of the constitution. Such a power also that is the power to alter, modify, or repeal an act of incorporation-is frequently reserved to the State by a general law applicable to all acts of incorporation, or certain clauses of the same, as the case may be; in which case it is equally clear that the power may be exercised whenever it appears that the act of incorporation is one which falls within the reservation, and that the charter was granted subsequent to the passage of the general law, even though the charter contains no such condition, nor any allusion to such a reservation. Reservations in such a charter, it is admitted, may be made, and it is also conceded that where they exist the exercise of the power reserved by a subsequent legislature does not impair the obligation of the contract created by the original act of incorporation."
Tomlinson v. Jessup, 15 Wallace, 454, 458-9, affirms the same doctrine. The court say: "The object of the reservation, and of similar reservations in other charters, is to prevent a grant of corporate rights and privileges in a form which will preclude legislative interference with their exercise if the public interest should at any time require such interference, It is a provision intended to preserve the State control over its contract with the corporators, which, without provision, would be irrepealable and protected from any measures affecting its obligation. The reservation effects the entire relation between the State and the corporation, and places under legislative contral all rights, privileges, and immunities derived by its charter directly by the State."
Other instances of the affirmance by this court of the reserved power will be found in the following cases: Sherman v. Smith, 1 Black., 587; Miller v. The State, 15 Wallace, 478; Holyoke Company v. Lyman, ib. 500.
In The Binghampton Bridge, 3 Wallace, 51, 75, the rule of construction, as between the State and the corporation, is thus laid down by the court: "In the case of the Charles River bridge, 11 Peters, 544, the rules of construction known to the English common law were adopted and applied in the interpretation of legislative grants, and the principle was recognized, that charters are to be constructed most favorably to the State, and that in grants by the public, nothing passes by implication. This court has repeatedly since re-asserted the same doctrine; and the decisions of the several States are nearly all the same way. The principle is this: that all rights which are asserted against the State must be clearly de
fined, and not raised by inference or presumption; and if the charter is silent about a power it does not exist. If, on fair reading of the instrument, reasonable doubts arise as to the proper interpretation to be given to it, those doubts are to be solved in favor of the State; and where it is susceptible of two meanings, the one restricting and the other extending the powers of the corporation, that construction is to be adopted which works the least harm to the State."
Again, in Home of the Friendless vs. Rouse, 3 Wallace, 430, 437, where the question was as to whether there was a contract between the State and the corporation, the court say: "It is true that legislative contracts are to be construed most favorably to the State if, on a fair consideration to be given the charter, any reasonable doubt arises as to their interpretation; but as every contract is to be construed to accomplish the intention of the parties to it, if there is no ambiguity about it, and this intention clearly appears on reading the instrument, it is as much the duty of the court to uphold and sustain it, as if it were a contract between private parties."
The observations of the court, 13 Wallace 498 and 522, that the power to alter is not without limit, are certainly correct, and not susceptible of mistake or misapplication. "Such a reservation, it is held, 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 to the stock, whose subscription is conditional, to waive any of the conditions of their contract." This is a limitation implied from the word alter, and dependent on the meaning of that word. It is the very same limitation recognized by the court of Wisconsin in one of the extracts above made. The legislature cannot under the reserved power change a corporation of one kind into one of another kind, nor change the substantial purposes of it, and for which it was created and its funds contributed by the corporators or donors, for this would not be alteration. It cannot, without the assent of the stockholders or corporators, change a railway corporation into one for the manufacture of agricultural implements, nor an incorporated banking company into one for doing the business of insurance. Alteration preserves identity both in kind and purpose. Change destroys identity, although the thing substituted may be of the same general kind. We change a thing by putting another in its place; we alter a thing by making it different from what it was before; we vary it by altering it in different manners and at different times. We change our clothes whenever we put on others; the tailor alters clothes which are found not to fit; and he raries the fashion of making them whenever he makes new. A thing is changed without altering its kind; it is altered without destroying its identity; and it is varied without destroying the similarity. We change our habitation, but it still remains a habitation. We alter our house, but it still remains the same house: we vary the manner of painting and decoration, but it may strongly resemble the man