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will not impose higher taxes in the future. Central Railroad, etc., Co. v. Georgia, 2 Otto, 66.
$ 1410. Under a “reservation clause " authorizing the repeal of a charter, an exemption from taxation may be repealed. Tomlinson v. Jessup, 15 Wall., 458.
$ 1411. A railway charter exempted the A. company from taxation for thirty-six years. The charter of the B. company exempted it from taxation forever. Subsequently, the A. company was merged in the B. company. Held, that neither the A. company nor its property attained by such merger a perpetual exemption from taxation. Tomlinson v. Branch, 15 Wall., 464.
$ 1412. The legislature conferred the "rights, powers and privileges” of a railroad company upon several others. Held, that the legislature intended to vest said several corporations with the privilege of exemption from taxation for the period of twenty years from the completion of their respective roads to the same extent that such exemption had been granted to the first company; that this conclusion is sustained by lexicographers and by the United States supreme court; that the charters of the companies are contracts within the meaning of the federal constitution, and whose obligations cannot be impaired either by leg. islation or by judicial construction. L. & N. R. Co. v. Gaines, 2 Flip., 637.
$ 1413. The charter of a banking corporation which declares “that the said company shall pay to the state an annual tax of one-half of one per cent. on each share of the capital stock subscribed, which shall be in lieu of all other taxes," is a contract between the state and the bank that any other tax than that therein specified is expressly forbidden. And subsequent revenue acts, imposing an additional tax upon the stock in the hands of the shareholders, is void. (STRONG, CLIFFORD and FIELD, JJ., dissent.) Farrington v. Tennessee, 5 Otto, 679.
$ 1414. Where the act of Virginia incorporating the Chesapeake & Ohio Canal Co. had forever exempted the property of the canal from taxation, and an act of congress had adopted the act of Virginia, so far as the property of the company was situated in the District of Columbia, it was held that there could be no legal taxes on such property, and that the question of the forfeiture by the company of the exemption by non-user of the property for canal purposes could not be raised in ejectment by the company for the property held under a tax title. Mackall v. Chesapeake, etc., Canal Co., 4 Otto, 308.
$ 1415. A charter excmpting a corporation from taxation and providing that a statute reserving the right to alter or repeal charters shall not apply to the charter of the corporation exempted from taxation, amounts to a contract which the state cannot impair, Home for the Friendless v. Rouse, 8 Wall., 437.
$ 1416. An act passed in 1875 by the legislature of Tennessee declared that any railroad company which should accept that act as an amendment to its charter, and should pay annually to the state one and one-half per cent. on its gross receipts, should be exempt from the other sections of the same act, and such payment of one and one-half per cent. should be in full of all taxation. A company whose charter exempted its capital stock from all future taxation, and its road, fixtures, etc., from taxation for a certain period not then expired, accepted the act of 1875, and paid the taxes required by it for two years. That section in the act of 1875 containing the exemption having been declared unconstitutional, it was repealed by the legislature, and the company was taxed according to other provisions in the same act, credit being given for the amount already paid under that act, and the difference adjusted. It was held, in a suit to restrain taxation under the other provisions of the act of 1875, that the section in that act containing the exemption from taxation was void as repug. nant to the provision in the state constitution subjecting all property in the state to the burden of uniform taxation, according to value, and that taxation imposed on the company after the exi on of the period of exemption contained in its charter did not impair any contract. Railroad Companies v. Gaines, 7 Otto, 697.
$ 1417. The provision in an act creating a banking corporation, that the bank shall semiannually, on the days designated in a former section for declaring dividends,“ set off to the state six per cent. on the profits, deducting therefrom the expenses and ascertained losses of the company for the six months next preceding, which sum or amount so set off shall be in lieu of all taxes to which such company or the stockholders thereof, on account of the stock owned therein, would otherwise be subject,” is a contract between the state and the corporation, and the imposition upon the bank of a higher tax than that stipulated in the charter impairs the obligation of contracts. (CATRON, DANIEL and CAMPBELL, JJ., dissent.) State Bank of Ohio v. Knoop, 16 How., 369; Mechanics' and Traders' Bank v. Debolt, 18 How., 380-384.
$ 1418. Exclusive privileges.- A clause in the charter of a bridge company, that “it shall not be lawful for any persons to erect any bridge or establish any ferry across the said west and east branches of the Delaware river, within two miles, either above or below the bridges to be erected in pursuance of this act," is a covenant with the Delaware company that it shall be free from competition within the prescribed limits, which precludes even the legislature from licensing any person or association to so enter into competition with the bridge company within the prescribed limits. The Binghamton Bridge Case, 3 Wall., 80. See 1232.
$ 1419. Where the charter of a bridge company exempts it from competition by fe:ry or bridge within two miles of its bridgos, a subsequent bridge company chartered to have the same powers, privileges and exemptions as those granted to the first company, will take the same privilege of exemption from competition within two miles of its bridges, although they are built over a different river, and although the charter of the second company is made perpetual instead of being limited to the duration fixed by the charter of the first company. Ibid.
$ 1420. Where a state legislature creates a corporation, and invests it with the exclusive privilege of erecting a bridge over a certain river, and the right of taking tolls for passing the same, the franchise to continue for one hundred years, the state may, under a general law, before the expiration of that time, lay out a public highway over the bridge, converting it into a free highway, by giving the corporation compensation for the property taken, in the same manner as if it was a natural person. West River Bridge Co. v. Dix, 6 How., 507.
§ 1421. The charter of a bank conferred upon it the exclusive right to furnish a certain city with water for a certain time, and provided that at the end of that time the city might purchase the water-works and issue its bonds therefor. Held, that these provisions relating to the purchase of the water-works by the city, and the issue of bonds in payment thereof, was a contract which could not be impaired by legislative enactments imposing onerous conditions on the transfer not contained in the charter of the bank. Sala v. City of New Orleans, 2 Woods, 194.
1422. A charter conferred upon the proprietors of Charles River Bridge the right to be a corporation, to build the bridge, and to take toll. This being the whole grant, held, that there was no exclusive privilege given to them over the waters of the Charles river above or below their bridge, no right to erect another bridge themselves, nor to prevent other persons from erecting one, no engagement from the state that another should not be erected, wo undertaking not to sanction competition, nor to make improvements that may diminish the amount of their income, and that no such rights could be implied from the charter. Charles River Bridge v. Warren Bridge, 11 Pet., ..420.
1423. Where the legislature extended the charter of a bridge company, and by the same act authorized the construction by another company of another bridge distant only a short distance from the old bridge, held, that by this act the legislature asserted its right to authorize improvements over the river which would take off a portion of the travel from the old bridge and diminish its profits, and that the bridge company, in accepting this renewal of its charter, could not claim an exclusive right to bridge the river. Ibid.
$ 1424. The legislature of Massachusetts granted Harvard College “the liberty and power' to dispose of a ferry from Charlestown to Boston by lease or otherwise. The college, by its lessees and agents, kept the ferry till 1735. Then the legislature incorporated “ The Proprietors of the Charles River Bridge,” granting to them power to erect a bridge in “the place where the ferry was then kept,” granting them tolls, limiting the charter to forty years, and requiring them to pay Harvard College £200 annually, and making the bridge, at the expiration of the charter (which, however, was then renewed for seventy years), the property of the commonwealth, saving a reasonable annual compensation to the college “for the annual income of the ferry, which they might have received had not the said bridge been erected." The bridge was built, its charter extended as above, and the college dues have been regularly paid. Held:
(1) That the right to the ferry ceased and determined upon the erection of the bridge. “ The ferry then, of necessity, ceased to exist as soon as the bridge was erected; and when the ferry itself was destroyed, how can rights which were incident to it be supposed to survive?" (Per TANEY, C. J.)
(2) That the ferry rights were not transferred to the bridge company, the validity of whose charter did not depend upon the consent of the college or of any assignment by it.
(3) That the payment of £200 a year required by law did not make the bridge company the assignee of the college's ferry right.
(4) That the charter of the bridge must, as a written instrument, speak for itself and be interpreted by its own terms, and that the pre-existing ferry right could have no influence upon the construction of the bridge charter. Ibid.
SUMMARY — Dissolution not prevented by existence of executory contract, $ 1425.— Rights of
crcditors, SS 1426, 1427.- Personal liability of trustees, SS 1428, 1430, 1431. – Distribution of assets, SS 1429, 1432, 1437, 1438. — Lands do not revert, g 1432. – No forfeiture collaterally, § 1433.– Foreign corporations, 1434.– Liability as grantee of lands, $ 1435.Change of charter, $ 1435. — Liens; appointment of receiver, $ 143). — Rights after decree of insolvency, § 1440. $ 1425. A corporation, by the very terms and nature of its political existence, is subject to dissolution. The mere fact that it has made an executory contract not yet fully performed will not continue it in existence. Mumma v. The Potomac Co., $$ 1411-42.
$ 1426. The obligations of contracts of a corporation survive notwithstanding its dissolution, and creditors may enforce their claims against any property not in the hands of a bona fide purchaser. Ibid.
$ 1427. The assignment of all the property of a corporation, and the surrender and cancellation of its charter with the consent of the legislature, does not defeat the rigat of a judgment creditor to satisfaction out of the property which belonged to it. Ibid.
$ 1428. Directors or managers of a corporation, who are such at the time of its dissolution, and are by law made trustees to wind up its affairs, are not personally liable to an action at law by a creditor, on a debt due him from the corporation. Hörner v. Carter, SS 14 13-15.
$ 1429. The assets of a corporation are applicable, first, to the payment of its debts, and second, are to be distributed pro rata among the stockholders of the corporation upon its dissolution. Ibid.
$ 1430. A trustee to wind up a corporation and to distribute its assets, who is guilty of maladministration of his trust, may be liable to an action at law for such mal-adıninistration, Ibid.
$ 1431. Ordinarily, before a proceeding at law can be had against trustees to wird up the affairs of a corporation and to distribute its assets, a proceeding in equity for a statement of the trust must be had in the first instance. After such a statement, a case at law may be maintained for the recovery by a creditor of the sum ascertained to be due him on said statement, but not paid or properly accounted for by said trustees. Ibid.
$ 1432. On the dissolution of a corporation its lands and real property do not revert to the grantors, but all its property is to be used for the payment of its debts. Any surplus remaining after the debts of the corporation are paid does not belong to a trustee to wind it up, but must be distributed pro rata among the stockholders; and if, after payment of the corporate debts, a trustee to wind up the affairs of the corporation retains for his own use the property of the company, a stockholder may maintain a bill in equity to btain from the trustee his share of the surplus remaining in the trustee's hands after the payment of debts. If the share of the stockholder has been ascertained by the trustee, the stockholder may sue without joining any of the other stockholders, but if such be not the case, all other stockholders are interested in the distribution, and are then proper parties to the bill. Bacon v. Robertson, SS 1446–49.
$ 1433. On scire facias to forfeit the lands held by a corporation, on account of its alleged breach of certain conditions of the grant of such lands to it, held, that the forfeiture of the charter of the company could not be effected in this collateral proceeding. A charter can only be forfeited by direct proceedings for that purpose, usually by bill in chancery, scire facias or information in the nature of a quo warranto. People of Vermont v. The Society for Propagation of the Gospel, SS 1450-53.
S 1434. A court cannot forfeit the charter of a foreign corporation. Ibid.
$ 1435. A corporation grantee of lands is liable to conditions imposed upon grantees generally as to payment of rent, cultivation, etc., the same as an individual person who, as a grantee, would be so liable. Ibid.
$ 1436. A charter cannot be changed by stockholders' default in paying, or election to retain, a portion of the capital, nor by a court of equity. Krebs v. Directors of Carlisle Bank, SS 1454-56.
§ 1437. The charter of a corporation constitutes the law of the partnership and permits no inequality of liability between stockholders other than that arising from the number of shares held by each one. No change of this principle is to be presumed from the practice of the corporation in the division of its profits; therefore, held, that where A. had paid $30 on his stock, B. $40 on his stock, and C. the full share value, $50, on his stock, and the corporation was dissolved, its assets should be distributed among the stockholders by paying to each respectively who had paid in on the stock subscribed or held by him more than the other stockholders the amount of such excess until all the said stockholders were made equal in the amount paid in on their respective shares of stock, after which the distribution of assets should be pro rata among the stockholders according to the number of shares held by each. Ibid.
$ 1498. A custom of officers of a bank by which dividends were erroneously declared does not bind officers of the bank in distributing its assets after its dissolution. Ibid.
$ 1439. The appointment of a receiver of a corporation, made after a lien has been created against its property, by force of attachment proceedings, vests such property in the receiver subject to the lien; and while the appointment of a receiver invests him with full power to sell, assign and convey all the assets of a corporation, this does not include the right to the possession and control of property in legal custody at the time of his appointment, and which is held by legal process for the benefit of creditors to whom the law gave a lien for the payment of their claims. Second National Bank of Patterson v. New York Silk Manufacturing Co., Sš 1457-61.
$ 1440. Although a decree of insolvency and injunction, and the appointment of a receiver, operates towards the dissolution of a corporation, yet it may continue to exercise its franchises and transact ordinary business in its own name, subject to the right of the receiver to the possession and control of the property. Such corporation may appear in an attachment suit against it and remove the same from the state to a federal court. Ibid.
(NOTES.-See $$ 1462-1499.]
MUMMA v. THE POTOMAC COMPANY.
(8 Peters, 281-287. 1834.)
Opinion by Mr. JUSTICE Story.
STATEMENT OF Facts.— This is a writ of error to the circuit court of the District of Columbia, for the county of Washington. The case presented on the record is shortly this: The plaintiff in error, Mumma, in June, 1818, recovered a judgment against the Potomac Company for the sum of $5,000. No steps were taken to enforce the payment of the judgment nor any further proceedings had in relation thereto until the 18th day of April, 1828, on which day a writ of scire facias was issued from the clerk's office of said court, against the said Potomac Company, to revive said judgment; which case was continued, by consent of parties, from term to term, until December term of said court in the year 1830, at which term the following plea and statement were filed by consent of parties: “The attorneys upon the record of the said defendants now here suggest and show to the court, that, since the rendition and record of said judgment, the said Potomac Company, in due pursuance and execution of the provisions of the charter of the Chesapeake and Ohio Canal Company, enacted by the states of Maryland and Virginia, and by the congress of the United States (4 Stats. at L., 101), have duly signified their assent to said charter, etc., and have duly surrendered their charter, and conveyed in due form of law, to the said Chesapeake and Ohio Canal Company all the property, rights and privileges by them owned, possessed and enjoyed under the same, which surrender and transfer from said Potomac Company have been duly accepted by the Chusapeake and Ohio Canal Company, as appears by the corporate acts and proceedings of said company, and final deed of surrender from the said Potomac Company, dated on the 15th day of August, 1828, duly executed and recorded in the several counties of the states of Virginia and Maryland and the District of Columbia wherein said Potomac Company held any lands, and wherein the canals and works of said company were situated; which said corporate acts and proceedings the said attorneys here bring into court, etc., whereby, the said attorneys say, the charter of the said Potomac Company became and is vacated and annulled, and the company and the corporate franchises of the same are extinct," etc. Whereupon, the
following statement and agreement were entered into and signed by the coun. sel for both parties, and made a part of the record: 6 The truth of the above sug restion is admitted, and it is agreed to be subinitted to the court whether, under such circumstances, any judgment can be rendered against the Potomac Company upon this scire facias, reviving the judgment in said writ mentioned, and that reference for the said corporate acts and proceedings, and the deed in the above suggestion mentioned, be had to the printed collection of acts, etc., etc., printed and published by authority of the president and directors of the Chesapeake and Ohio Canal Company in 1828.”
Upon this statement and agreement the circuit court gave judgment that the plaintiff take nothing by his writ, and the question now is whether this judgment is warranted by law. Two points have been made at the bar. 1. That the corporate existence of the Potomac Company was not so totally destroyed by the operation of the deed of surrender as to defeat the rights and remedies of the creditors of the company. 2. That the deed of surrender violates the obligation of the contracts of the company, and that the legislative acts of Virginia and Maryland, though confirmed by the congress of the United States, are on this account void, and can have no legal effect.
We think that the agreement of the parties completely covers the first point, and precludes any examination of it. That agreement admits the truth of the suggestions in the plea of the attorneys for the Potomac Company; and by that it is a verred that the charter of the Potomac Company was duly surrendered to the Chesapeake and Obio Canal Company, and was duly accepted by the latter; and that thereby the charter of the Potomac Company became and is vacated and annulled. And if we were at liberty to consider the last averment, not as an averment of a fact, but of a conclusion of law, the same result would follow; for the thirteenth section of the act of Virginia of January, 1824, incorporating the Chesapeake and Ohio Canal Company, declares that, upon such surrender and acceptance, “the charter of the Potomac Company shall be, and the same is hereby, vacated and annulled, and all the powers and rights thereby granted to the Potomac Company shall be vested in the company hereby incorporated.”
$ 1441. The obligation of contracts of a corporation survives notwithstanding its dissolution, and creditors may enforce their claims against any property not in the hands of a bona fide purchaser.
Unless, then, the second point can be maintained, there is an end of the cause; for there is no pretense to say that a scire facias can be maintained, and a judgment had thereon, against a dead corporation, any more than against a dead man.
We are of opinion that the dissolution of the corporation, under the acts of Virginia and Maryland (even supposing the act of confirmation of congress out of the way), cannot in any just sense be considered, within the clause of the constitution of the United States on this subject, an impairing of the obligation of the contracts of the company by those states any more than the death of a private person can be said to impair the obligation of his contracts. The obligation of those contracts survives, and the creditors may enforce their claims against any property belonging to the corporation which has not passed into the hands of bona fide purchasers, but is still held in trust for the company, or for the stockholders thereof, at the time of its dissolution, in any mode permitted by the local laws. Besides, the twelfth section of the act incorporating the Chesapeake and Ohio Canal Company makes it the duty of the president and directors of that company, so long as there shall be and re