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changed that these animals could be employed thereon, would this in any sense be regarded as an alteration of its charter? Or suppose the legislature should enact that its members might vote for directors at the annual meetings of the stockholders of the company, and that their vote should elect a majority of the board for the management of its affairs, would this be regarded as a lawful amendment of the charter, enforceable at the suit of the State, or by legislators thus made corporators? Suppose again, that the legislature should sppoint three Commissioners to sit with the board of directors at all their meetings, exclusively to determine the kind of cars which should be operated, the kind of rails which should be used, who should also have authority to appoint master mechanics, superintendents and conductors of the road, with exclusive power also to say what compensation should be charged for the carriage of freight and passengers, leaving other duties such as providing moneys to operate the road, to pay interest on bonds, &c., to be performed by directors appointed by the stockholders; would such an injection of Commissioners for such purposes be alteration or amendment within the meaniug of this reservation? Suppose again, that by express statute these three Commissioners were to be charged with the exclusive duty of so fixing rates of compensation that they should produce a sum, the exact equivalent of what should be expended in operating the road, and keeping it and its cars in repair, would such an act constitute an amendment or alteration of the act of incorporation? But suppose instead of this, the three persons thus appointed were charged with the power of fixing at their discretion, from which there should be no appeal, the rates of compensation to be charged, would this constitute an alteration or amendment of the charter? If so, these persons could without proof by, or hearing of, directors or stockholders, utterly destroy at will the power of the corporation to operate the road, or pay bondholders or stockholders-indeed could totally destroy their entire property and interests.
Can this court believe-can it judicially declare-that the State in making this reservation believed it would acquire authority to do either of the acts supposed, or in any manner to take from corporations the control or beneficial use of their property, and without doing this or any such grave injustice, may not the reservation in question be so construed as to confer upon the State authority to make all needful and just alterations the charter?
It is certain in view of many other illustrations which might be supposed there is a limit to this power to alter and amend, as was said by the Supreme Court of the United States in the case of Miller vs. the State, 15 Wallace, p. 498 and by Chief Justice Shaw in the case of the Commonwealth vs. Essex Co., 13 Gray, 252.
In the latter case the chief justice, after saying it was difficult to define this limit, suggested that the rule to be extracted might be 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. And the Supreme Court of
the United States in the case cited, after suggesting the same limitation in similar language, adds " but it may be safely affirmed that the reserved power may be exercised, and to almost any extent, to carry into effect the original purposes of the grant, or to secure the due administration of its affairs, so as to protect the rights of stockholders and creditors."
These general observations are nevertheless sufficiently precise to furnish a rule for the disposition of this case. There is a limit to this reserved right of one party to the contract to alter it, and that limit is to be judicially ascertained and defined. Rights and property which have become vested in the corporation in pursuance of the terms of its charter, cannot be taken away, nor can it be deprived of the use thereof, for that would be practically taking the property itself. Alterations to almost any extent may be made to carry into effect the original purposes of the grant, or to secure the due administration of the affairs of the corporation for the security of creditors and stockholders. These limitations are in exact harmony with the intent of the parties to the contract. The original purpose of the grant is to be effectuated by such amendments as tend to that result. No disturbance of vested rights, no taking of the property of the corporation acquired in pursuance of its charter is to be permitted, under pretence of alterations; whilst changes to preserve the rights of stockholders are to be liberally allowed. This is a fair, a just mode of construing the contract which the State offered and which the corporation accepted. By the aid of these rules, and bearing in mind that the State can only make alterations and amendments by force of the contract authorizing them, and not in the exercise of an arbitrary sovereign power, we shall be able to draw lines of limitation for the government of this case, which clearly exclude the act in question.
When this charter was granted, there existed certain fundamental rules for the protection of property, founded in the principles of eternal justice and imbedded in the constitution of most States, including Wisconsin, and of the United States, which the parties to the charter had in mind, and in view of which they contracted, and by which their contract is to be construed and controlled. Private property could only be taken for public use, and then only upon making just compensation to the owner thereof. Nor could the property of any person be taken without due process of law. In view of these provisions, if the State of Wisconsin had, by act of its legislature, provided that the steam-power of an incorporated company might be used by mechanics or others at certain rates of compensation, such use would have been an appropriation of property without due process of law, and the authorizing of it would have been utterly void. Such too would have been the fate of a statute requiring the owners of any kind of property to lease or permit others to use it without compensation, or at rates prescribed by the legislature or its agents.
To possess the title to property without the power to manage it, control its use and the profits thereof, subject only to the general law of the land, is a worthless privilege-a sham of no value, and
hence the fundamental law guarantees not only title in the owner, but his right, absolutely, to control and use his own property. When the charter of this company was granted, this right to the management and use of property was well understood by both parties, and expressly recognized in that instrument. The stockholders who were to furnish the money to build and equip the road, were by themselves and by directors to be by them chosen, expressly authorized to manage and control all the property and affairs of the corporation, and to fix the rates of compensation to be received for its use, and for the services of its hired servants. When this property was acquired it became, to all intents and purposes, private property, subject to a limited public use, vested in the corporation for the benefit of the stockholders, and with this ownership, and as an inseparable attendant upon it, was the absolute right to manage, control and use it, subject to the purposes for which the company was organized; and to fix and receive compensation for its use. Such were the rights at that time of all owners of property; and these rights became inseparably attached to the property of this corporation the moment it was acquired, in pursuance of the terms of its charter; and these rights thus acquired and vested, in the language of the Supreme Court of the United States, and of Chief Sustice Shaw, could not be taken away or destroyed under the reservation in question.
Having thus presented some general considerations, for the purpose of illustrating the nature of and title to corporate property, I shall attempt to state with presision the exact conditions under which the corporators, when it has been acquired in strict conformity with their charter, are exclusively entitled to its enjoyment and control, subject to no interference by State legislation.
First. The State of Wisconsin has contributed nothing towards constrcting, equipping, maintaining, or operating the roads of the Chicago and Northwestern Railway Company. It has, it is true, conferred upon the company the authority to take for its road-bed land belonging to private persons, on paying them full compensation therefor; but this has cost the State nothing whatever. It has also conferred upon the corporation certain franchises-commonly bestowed-one of which is expressly, or by implication, exemption of the stockholders from personal liability for certain debts to be contracted.
Under this charter and in precise conformity with its provisions, the corporation has proceeded to purchase and acquire, real estate in. fee simple-to build thereon numerous and costly structures, to equip its road at vast expense, and all this with money furnished by its stockholders and bondholders. This property thus acquired, has become absolutely vested in the corporotion for the benefit of the corporators, and should the legislature of Wisconsin pass an act in terms forfeiting to the State one dollar of it, such act would be utterly void. If it should by statute declare that the corporation should convey to the State a single passenger or freight car, or one of its most insignificant depot-buildings, that provision of the constitution which prohibits the taking of private property, except by
due process of law-that which prohibits the taking of private property for public use except upon making just compensation, would be violated; and so they would be, should the State attempt by legislative enactments to acquire the transfer for its use, or for the use of any person or corporation, of such car or depot-building.
And why this inviolability? Not because it is conferred by the charter of incorporation, but because the company being authorized to purchase, hold and use property for its purposes, acquires an absolute right thereto as owner, and thereupon is protected as such by the constitutional provisions referred to.
In illustration of the marked distinction existing between the ownership by a corporation of its property thus acquired and of its franchises, it is only necessary to say that the latter being derived from the State by contract, may by the courts, for sufficient cause be forfeited, and may under certain conditions be by legislative enactment altered or withdrawn; but neither this forfeiture, alteration or withdrawal entitles the State to acquire title to or control over any portion of the property of the corporation. This to the extent of its full value, for the purposes of all its uses, is to be faithfully applied for the benefit of stockholders and creditors. The broad distinction here noticed between title to and enjoyment of the property of a corporation, and of its franchises, is maintained throughout its entire career. The latter being derived from the State, may under certain conditions be resumed by the State. The former is derived from stockholders who contribute it on the faith that it is to be held and controlled by them through agents of their selection, substantially as it would be if the title thereto were in them.
Thus under a power reserved in the charter, that the State might alter or amend it, the franchise by which stockholders are exempted from liability for debts contracted by the corporation might, perhaps, as to subsequent contracts, be changed, so as to impose such liability; but this would simply be a change in the contract between it and the State, and the withdrawal of a privilege conferred by the latter. So also when the charter exempts the property of a corporation from taxation by the State, this franchise, which it has been gravely doubted if the State may grant, might perhaps be withdrawn or modified under the reserved authority: but in these supposed cases the State is modifying the contract by a resumption of what it gave to, or stipulated to confer upon the corporation, and is not attempting to take without compensation property in which it never had an interest. The right to alter, amend or repeal thus reserved, is, at the most, but a right to change or terminate the contract between the State and corporation, not a right to take property vested in the latter in precise conformity with its powers; nor a right to confer its use upon the State, or upon any private person; and of course does not authorize the State to take possession or control of it, or to fix the rate of compensation payable to its owner for its use; for this would, at the pleasure of the State, result in confiscation.
Second.-If I have been successful in the argument and illustrations employed, they lead to the conclusion that the construction and operation of an agreement by a corporation when it accepts its charter, that the State may alter, amend, or repeal it, is to be by the courts of justice judicially defined, ascertained and determined; and is not to be adjudged and enforced at the arbitrary will of the legislature. The State is a party to the agreement, and cannot sit upon it in judgment. It is to be defined and judicially enforced in accordance with the intent of parties, so far as this can be ascertained from the language employed by them in making it. Its operation is also to be controlled, if this intent and meaning, or the language employed, be doubtful, by those great principles which in most, if not all, civilized countries, have by constitutional, legislative or judicial authority, been established for the protection of private property. The franchise granted by the State is the privilege conferred upon certain persons of being a corporation, and as such, of accomplishing the purpose of its creation, in which the public generally have an interest. If the purpose be to construct and operate a railway, stockholders are usually expressly authorized to manage by themselves or by their directors its business and affairs; and to fix the rates of compensation they are to receive for the carriage of passengers and freights. Such a provision is, however, quite unnecessary, for the franchise to be a corporation for such a purpose would necessarily imply it was to be so governed by its stockholders as to accomplish that purpose. They would need no authority by any provision of the charter to enable them to control the property and means they might contribute to construct, equip and maintain the railway, for their title to such property being derived from sources other than the State, they would be protected in its use and control by the constitutional provisions I have mentioned. It is clear, therefore, that as the property of such a company is not acquired from or by force of its contract with the State, any alteration or amendment of its charter could in no substantial respect affect its right of ownership and absolute control over such property as had become vested in it. It will hardly be denied, therefore, that as the control and beneficial use of property is incidental to ownership, without which the latter would be worthless, that provision of the charter of the Chicago and Northwestern Railway Company, by which it was expressly authorized to fix rates of compensation for the carriage of freight and passengers was unnecessary; for without it this right would have been vested in the corporation. It was indeed but a right to contract with those who should desire its services as a common carrier for compensation as such and as it would be inconvenient to make contracts with each person who should need such services, the corporation would have been entitled to establish its rates of charge, subject only to the legal duty applicable to all common carriers, that its rates should be reasonable.
When, therefore, this corporation was created such, it came under subjection to this obligation imposed by the common law, and if its charges should be unreasonable, the party affected thereby has his 28 R R C-APP.