Mobile & Ohio Railroad v. State

WALKER, J. It is contended for the railroad company, that by an act of 12th January, 1856, a renewal of the loan was authorized, and that it has done all that was necessary to entitle it to a renewal of the loan under that act. On the other side it is contended, that by an act passed on the 14th February, 1856, other conditions precedent to the loan were prescribed, with which the company- does not in its bill show an offer or a willingness to comply. This position of the State is met by the argument, 1st, that the act of 14th February, 1856, having been passed at the same session of the legislature with that of 12th January, 1856, cannot alter or repeal it; 2d, that .the application of the Mobile and Ohio Railroad Company for the renewal of the loan to it is not included in the act of 14th February, 1856 ; 3d, that the act of 14th February, 1856, requires from the company a consent that the legislature may do that which it cannot do without violating the constitution. •Some of the works on English law say, in general terms, that “ an act cannot be altered or repealed in the same session in which it is passed, unless there be a clause inserted expressly reserving a power to do so.” — 14 Petersdorff’s Abridgment, “statute,” 91, p. 720; Dwarris on'Statutes, 673. And such was, at one time, the law in reference to acts of the British parliament; but the doctrine resulted from the fact, that the royal assent bore no date, and the order of the approval of the laws adopted at a given session of parliament was not known, and they were all alike regarded as having received the royal assent on the first day of the session. Afterwards, by the statute of 33d George III, ch. 18, it was provided, that the date oNthe approval should be endorsed, and should be the commencement of the law where no other was prescribed. After the adoption of this last act, it was held, that a subsequent might repeal a former law of the same session .of parliament. In this country, where laws are of — 582 — force from their actual adoption unless otherwise directed, the old English rule has been repudiated. Upon the principle that the latest expression of the legislative intention must control, a repugnant proviso to an act may repeal it; and upon the same principle, an act may be repealed by a subsequent one at the same session. The regulations .of the parliamentary law, as to the entertainment of propositions to alter or repeal acts or resolutions during the session of their adoption, are rules of legislative conduct, and not of judicial action. It appears, however, that even the parliamentary law does not absolutely exclude all propositions for the alteration of previously adopted acts of the same session.— King v. Justices of Middlesex, 2 B. & A. 818, (22 E. C. L. 190) ; Panter v. Turner, 6 Brown’s Par. Cases, 553 ; Spencer v. The State, 5 Ind. 41 ; The Brig Ann, Tenny, claimant, Gallison’s R. 62; Peyton v. Moseley, 3 Kentucky, (T. B. Monroe,) 77 ; Goodsell v. Boynton, 1 Scam. 555 ; Jefferson’s Manual of Parliamentary Practice, 93-94. We follow up the conclusion that it was competent for the legislature, at the same session, to alter, modify or repeal a law by a subsequent act at the same session, with the examination of the second position taken for the railroad company, that the act of 14th February, 1856, does not embrace its application for a renewal of the loan, and therefore does not alter the act of 12th January, 1856, under which the application is madei The act of 12th January authorizes and directs the governor to renew the loan of four hundred thousand dollars, taking “ the first mortgage bonds of said company, or such personal securities, or both, as heretofore required, as satisfactory to him, for the payment of the principal and interest of said loan ; provided, that the debt shall notbe extended, unless the governor is satisfied that the debt is made perfectly safe to the State ; and provided further, that the governor be directed to require not only the first mortgage bonds, to at least the amount of the loan, but also such personal security as he shall deem satisfactory ; said personal security not to be less than fifty per cent, of the amount of the loan.” The-act of 14th Feb. is as follows : (see preceding statement of facts.) The question here is, not whether the former of the two foregoing acts is repealed by the latter, but whether the latter — 583 — superadds the conditions mentioned in it to the conditions upon which the renewal of the loan was directed by the former. We do not controvert the proposition, that special provisions are not repealed by general provisions upon the same subject. The maxim of the law is, “ generalia specialibus non clerogant.” The act of 12th January, 1856j is a special one, contemplating the renewal of a loan-to the Mobile and Ohio Railroad Company, upon certain conditions therein named ; and the principle above stated exacts the concession in this discussion, that no general law, subsequently enacted, can be construed to add other conditions to those required by the special law, unless the latter law clearly manifests upon its face an intention to add such new conditions, and thus specially aims at a modification of the former law by a cumulation of conditions. By recurring to the first section of the act of 14th Februrary, 1856, it will be seen that it includes only loans made, or that might be made, and does not by its terms include renewals of loans. The second section, however, expressly prescribes that, “ before extending any loan by virtue of the provisions of the act under which application is made for a loan or extensim,” the company must file its consent to, and acceptance of the provisions of the act. It is thus, in effect, required that, if a company make application for the extension of a loan by virtue of the provisions of some other act, it must consent to the terms and conditions of the net under consideration. The statute thus points; with a directness and clearness which we cannot' disregard without ignoring its words, to the application of the Mobile and Ohio Railroad Company, for a renewal of its loan by virtue of the provisions of the act of 12th January, 1856, and says that when an application is made for a renewal under that act, this act of 14th February, 1856, must be complied with. Otherwise, the words of the statute which we have last noticed have no meaning ; for it might be contended, in every instance of an application for the renewal of a loan under the provisions of an act of the legislature, that the provisions of the particular statute could not be controlled by the general law. We draw no distinction between the import of the word “renewal” and of the word “extension” used in the two statutes. We think that, as here used, they are synonymous. — 584 — Two reasons are urged in support of tbe position, that the act of 14th February, 1856, requires a consent to the exercise of unconstitutional powers by the legislature. Those reasons are, that the legislature would, in declaring the charter forfeited, exercise judicial power ; and that the forfeiture of the charter, in a contingency stipulated between the corporation and the State, and not recognized by the law as it previously existed,' would interfere with the vested rights of its creditors and others who had acted upon the faith that the charter and the subsisting law afforded the measure of its powers and liabilities. The consent, which the corporation is required to make, is threefold : that the charter should be forfeited upon default of payment; that the general assembly might declare it forfeited ; and that the forfeiture so declared should be complete and effectual for all purposes without any judicial proceedings for that purpose. The last two items in the required consent fall within the purview of the objection as to the exercise of judicial power by the legislature ; the first does not. The consent that, in a certain contingency, the charter should be forfeited, does not of itself contemplate any subsequent legislative action. If some of the provisions of a statute violate the constitution, while others are consistent with it, the latter will be maintained, if they can bo separated from and stand without the unconstitutional and void parts of the law. The courts will treat the unconstitutional parts as if they were stricken out of the statute. — Campbell v. The Miss. Union Bank, 6 Howard’s Miss. R. 677 ; Bank of Hamilton v. Dudley’s Lessee, 2 Peters, 526 ; Clark v. Ellis; 2 Blackford’s R. 8 ; Sturges v. Crowninshield, 4 Wheaton, 122 ; Ely v. Thpmpson, 3 A. K. Marshall, 70. The requisition, that the corporation should consent that its charter should be forfeited by a failure to pay, may stand, and may be performed, independently of, and separately from, the requisition of its consent that the forfeiture may be declared by the legislature, and that the forfeiture so declared should “be complete and effectual for all purposes without any judicial proceeding for that purpose.” If the constitution is not violated in requiring the corporation to consent that its charter shall be forfeited upon a failure to pay, there is no equity in the complainant’s bill; because it does not appear — 585 — that the corporation, lias either offered to comply, or is willing to comply, with that requisition. If a compliance with the law in that particular be a necessary condition precedent to the renewal of the loan,' it would be most unreasonable for the chancery court to enjoin proceedings under the mortgage,, without knowing that the corporation would or could, or was even willing to consent to a forfeiture of its charter upon a failure to pay. The bill does not disclose either an offer or an expression of a readiness or willingness to consent that the charter shall be forfeited by a default in the repayment of the loan. It is unnecessary, therefore, for us to consider the question, whether the legislature could constitutionally declare a forfeiture complete and effectual for all purposes without any judicial proceeding, if there is no violation of the constitution involved in the requirement of its consent to a forfeiture of its charter for a default in the repayment of the money loaned. We therefore waive the consideration of the question of the constitutional power of the legislature to declare the forfeiture, and content ourselves with a citation of the authorities which affect it. — Crease v. Babcock, 23 Pick. 335 ; Campbell v. Miss. Union Bank, 6 How. 661; Wild’s Lessee v. Sheppell, 10 Grattan, 405 ; Ang. & Ames on Cor. 891, § 778 ; Canal Company v. Railroad Company, 4 Gill & J. 722; Miners’ Bank of Dubuque, 1 Morris, (Iowa,) 482; State v. Curran, 7 Eng. (Ark.) 321; People v. Manhattan Co., 9 Wend. 351 ; Read v. Frankfort Bank, 23 Maine, 318. We cannot assent to the proposition, that the declaring a charter forfeited, in pursuance to a law accepted by the corporation, violates the constitution by impairing the obligation of contracts. The legislature may repeal the charter of a public corporation ; and it has never been supposed that, by so doing, the constitution is violated. This repeal may be for causes existing after liabilities were incurred, or it may be without any sufficient cause ;, and yet the effect of the repeal and of a forfeiture are the same, so far as the'rights of creditors are concerned. The charter of a corporation may be made liable to repeal by the legislature, by an amendment accepted by the corporation, which reserves the power, notwithstanding the charter was before irrepealable. — Monongahela Navigation Co. v. Coon, 6 Penn. State R. (Barr,) — 586 — 379. The legislature may repeal the charter of a private corporation, provided it assent to such repeal; and the corporation may voluntarily make a surrender of its charter, which will certainly, if accepted by the legislature, terminate the corporate existence. — Angelí & Ames on Corporations, §§ 772-773. It is clear, both upon reason and authority, that the dissolution of a corporation, in any of the modes above stated, does not infringe the constitutional provision designed to preserve and protect the obligation of contracts, notwithstanding it may deprive creditors of all opportunity to collect their debts. The consistency with the constitution of a dissolution by such means is'maintained upon the idea, that all persons deal with the corporation in reference to, and in contemplation of its liability to dissolution by those agencies. The effect upon creditors of an accepted surrender of a charter, and the effect of a forfeiture of a charter, are identical; and therefore a discrimination between the constitutional capacity of a corporation to assent to a surrender of its charter, and to assent to a forfeiture in a given contingency, is not supported by any good reason. As a corporation has the power to consent that its charter may be forfeited upon a certain default, persons must be regarded as having contracted upon the hypothesis of the existence and of the possible exercise of that power. It can make no difference, that those dealing with it could not foresee, that the consent to a forfeiture would be called forth by a statutory requirement of that consent, as a condition precedent to the renewal of a loan. To avoid the constitutional objection, it is sufficient that contracts may be deemed to have been made in anticipation that the power to give the consent might be exercised, and it is not necessary that the contingency in which the power is exercised should have been anticipated. If it were, there could probably never be a repeal or surrender of the charter of a corporation, without a violation of the constitution. In support of the views above expressed, we cite the following authorities : — Paschall v. Whitsett, 11 Ala. 472; Mumma v. Potomac Company, 8 Peters, 281 ; Severe v. Boston Copper Company, 15 Pick. 351; Enfield Toll Bridge v. Conn. River Co., 7 Conn. 28. The authorities do not sustain the proposition, that there — 587 — is no power in a corporation to consent to a destruction of tbe corporate life by forfeiture or surrender. It may be, that such a consent could not be given by a majority of tbe corpo-rators, and tbe authorities seem to go to that extent. — New Orleans, Jackson and Great Northern Railroad Co. v. Harris, 5 Miss. (Cushman,) 517 ; Ward v. Society of Attorneys, 28 Eng, Chan. (1 Collier,) 370 ; Angelí & Ames on Cor. § 772. If it be conceded that the corporation could only give its consent to the forfeiture of its charter upon the default in the repayment of the loan, upon the authority of all the stockholders, it is only shown that the difficulties of complying with the act are very great. The unconstitutionality of the law is not a consequence of the magnitude of the difficulty in complying with the condition which it imposes. We do not decide that the act of 12th January could be repealed- or altered by an unconstitutional act, or that the railroad company could be required, as a condition upon which it should receive the benefit of that law, to consent that the legislature should do a thing beyond its constitutional power. But the act of 12th January, while it became a law upon its passage over the executive veto, could not become a contract, until it was accepted by the railroad company. The bill does not aver, and we cannot presume in favor of it, that the company accepted or acceded to the propositions of the act of 12th January, before the passage of the act of 14th February. The law of 12th January not having become a contract, it was competent for the legislature to have repealed the law, and thus withdrawn the proposal made by it, or to have modified it, by superadding conditions, even though those conditions may have involved insuperable difficulties, and therefore amounted to a denial of the renewal of the loan. The attitude of the State cannot be distinguished from that of an individual, who has proposed a loan, and, prior to the acceptance of the propositions, imposes conditions of great, or even insuperable difficulty. We deem it proper to observe, that although our judgments are fully convinced of the correctness of the conclusions which we have attained, we have been compelled to prepare the opinion in this case with more haste than is desirable. This results from the fact, that the Code (§ 2984,) directs that — 588 — appeals from decrees dissolving injunctions shall be heard and determined at the first term after the appeal is taken ; and the case was submitted to us only a few days before the adjournment of the court. The decree of the chancery court is affirmed.