Little v. Bowers

The opinion of the court was delivered by Dixon, J. The claim of the Central Railroad Company in this case, is that by force of the supplement to the act to incorporate the Somerville and Easton Railroad Company, approved March 17th, 1854, (Pamph. L., p. 524,) and the company’s written assent to and acceptance of the same, an irrepealable contract was made between the state and the corporation to the effect that the latter should annually pay a tax of one-half of one per centum upon the cost of the road, and that no other tax or impost should be levied or assessed upon the company. If the question were an open one, I should have no hesitation in reaching the conclusion that the power of tax-ation could not be made the subject of contract by the legislature, that it was entrusted to the legislature to be exercised and not to be destroyed or abridged, that as it resided in our prototype, the English parliament, unimpaired by acts of previous sessions of that body, so it was possessed by our legislature} unfettered save as fundamental law restrained it, and that the constitutional clause protecting contracts could not, with reason, be extended to what, in all our history, had been regarded, not as a bargain between parties at liberty to assent or dissent, but as an exertion of sovereign power controlling the willing and unwilling alike. But unfortunately, as I think, the question is closed by judicial decisions which no court in this state can disturb, and unless these decisions shall be reversed, it must be conceded that the legislature has power to barter away this essential attribute of government. But in view of the extraordinary character of this power, ■of the great inconvenience consequent upon even its occasional use, of the utter destruction of government that would follow its frequent and impartial exercise, courts must feel constrained to decide that it has been put in force only when the [304] opposite judgment cannot be formed by a rational mind. If to doubt whether the state has parted with any public right is to be resolved that it has not, certainly language can scarcely express the reluctance of courts to infer that this most important of all public rights has been surrendered. With these prepossessions, then, I come to consider whether the alleged contract was made. The act of March 17th, 1854, is a supplement to the-charter of the- Somerville and Easton Railroad Company, which was granted February 26th, 1847. On February 14th, 1846, the legislature passed a general law concerning corporations [Pamph. L., p. 16,) the sixth section of which enacted that the charter of every corporation which should thereafter be granted, should be subject to alteration, suspension and repeal, in the discretion of the legislature. This provision did not bind subsequent legislatures so that they could not grant irrepealable charters, but it created a law wbjch can never justly be put out of sight in determining whether any charter granted was designed to be irrepealable. All acts of the legislature are performed in contemplation of existing laws, and repeals by implication are not favored, and hence this law of 1846 is to be considered as embodied in every corporate charter thereafter passed, unless a purpose to exclude it be plainly perceived. In the charter of the Somerville and Easton Railroad Company, approved in 1847, no intimation of such a purpose exists, nor does there in the supplement of 1854, unless it be found in the ninth section thereof, which declares that the supplement shall take effect only in case, within six months after its passage, the company shall file a written assent to and acceptance of all its provisions. This clause is relied upon to establish the irrepealable contract. But it appears to me to be entitled to no such scope. It is the general rule that the charters of private corporations become operative only upon their acceptance by the persons interested. Sometimes this acceptance is presumed from the advantageous character of the grant; sometimes it is indicated by [305] an exercise of the powers granted; in the present case, the legislature chose to require that it should be evidenced by an express declaration made within a limited time. But whether the needed assent is to be given in one form or another, seems of little importance in determining the nature of the rights conferred. The selection of any form should not give rise to an inference that it was intended to repeal, pro hao vice, a prior law otherwise consistent with the charter, and so to abridge the taxing power of the state. Whether the assent of the company was necessary for the efficiency of this supplement may be doubted, but since it so materially enlarged the powers and correlative duties of the corporation, the legislature might have fairly considered it to be more than an alteration of the charter, and in that aspect the requirement of a prompt and formal acceptance was only a reasonable precaution. This is all the significance that should be ascribed to the section in question. But it is said that the decision of the Supreme Court of the United States, in New Jersey v. Yard, 95 U. S. 104, necessitates the opposite conclusion. I do not think so. That case and the present are quite dissimilar in the following important particulars: 1. The charter of the Morris and Essex Railroad Company was granted in 1835, and therefore was not affected by the law of 1846 above mentioned, and the federal court seems to have been unwilling to hold that the act of 1846 was applicable even to subsequent amendments of that charter. This left the power of alteration dependent on a supplement passed in 1836, which expressly confined the power to itself and the original charter. The claim of exemption rested upon a supplement passed in 1865, which the court therefore adjudged to be an absolute grant. But in the case before us, there can be no doubt of the propriety of interpreting the charter of the Central Railroad Company and its supplements, with the act of 1846 in view. 2. The acceptance required from the Morris and Essex Railroad Company by the supplement of 1865 was not of the [306] whole act, but only of the section imposing the tax, as if it were designed to put that section upon some other footing than the rest of the statute; but in the Central company’s act of 1854, the acceptance was to embrace all the provisions of the supplement, so that the taxing clause is in no way specialized. 3. I-n the Morris and Essex company’s case, the Supreme Court regarded the state’s right to tax the company as a vexed question prior to 1865, which the legislature desired to have settled, and which therefore seemed to be in a posture for adjustment by contract; but it does not appear that before the act of 1854, or ever until recently, any dispute was raised against the power of the state to tax the Central company, or that, in assenting to that supplement, the company was yielding any consideration for what, if the present claim be good, possessed enormous value. 4. The language of the section imposing the tax upon the Morris and Essex Railroad Company is itself suggestive of a contract for exemption; it declared that that tax should be in lieu and satisfaction of all other taxation or imposition whatsoever, by or under the authority of this state, or any law thereof. In the Central company’s act of 1854, no such terms are used; it simply directs a tax of one-half of one per centum to be paid, provided that no other tax or impost shall be levied or assessed upon the said company. This proviso I understand to be merely a declaration that the legislature then intended that the company should not then be chargeable with any other tax than the one-half of one per centum. Without the proviso, it might have been claimed that the tax act of March 3d, 1854, {Pamph. L., p. 296,) subjected all the real and personal estate of the company to taxation; with it, such an inference was rebutted. These differences between the situations of the two companies involve the main grounds on which the Supreme Court of the United States based its decision, and they deprive the present claim of any support from the judgment of that high tribunal. The taxes under review should be affirmed, with costs.