« AnteriorContinuar »
Opinion of the Court.
expressly excepted from such repeal, cannot stand with that of 1886.
Was the repeal, which was effected by the revenue act of 1886, in violation of any rights acquired by the water company under the act of 1882? We think not. The act of 1882 contained no clause that "plainly expressed" the intention not to exercise the power, reserved by the statute of 1856, to amend or repeal, at the will of the legislature, all charters of or grants to corporations, or amendments thereof, and other statutes. There was no such reservation in the act of 1854, incorporating the water company, and, therefore, that act was subject to the general statute of 1856. Hamilton v. Keith, 5 Bush, 458. But, in respect to all the acts passed after 1856, amending the charter of, or relating to, the water company, including that of 1882, each must be read as if all the provisions of the act of 1856 were incorporated in it, because in no one of them is plainly expressed an intent to waive the right of amendment. or repeal at the will of the legislature. In this view, the rights acquired by the water company under the act of 1882 were subject to the reserved power of amendment or repeal; saving, whenever that power was exerted, all rights previously vested. In short, the immunity from taxation, granted by the act of 1882, was accompanied with the condition - expressed in the act of 1856 and made part of every subsequent statute, when not otherwise expressly declared that, by amendment or repeal of the former act, such immunity could be withdrawn. Any other interpretation of the act of 1856 would render it inoperative for the purposes for which, manifestly, it was enacted.
These conclusions are sustained by many adjudications. In Tomlinson v. Jessup, 15 Wall. 454, 457, which involved the liability to taxation of a corporation, an amendment of whose charter exempted it from taxation, this court said: "It is true that the charter of the company when accepted by the corporators constituted a contract between them and the State, and that the amendment, when accepted, formed a part of the contract from that date and was of the same obligatory character. And it may be equally true, as stated by counsel, that the ex
Opinion of the Court.
emption from taxation added greatly to the value of the stock of the company, and induced the plaintiff to purchase the shares held by him. But these considerations cannot be allowed any weight in determining the validity of the subsequent taxation. The power reserved to the State by the law of 1841 authorized any change in the contract as it originally existed, or as subsequently modified, or its entire revocation. The original corporators, or subsequent stockholders, took their interests with knowledge of the existence of this power, and of the possibility of its exercise at any time in the discretion of the legislature. 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 to the State control over its contract with the corporators, which, without that provision, would be irrepealable and protected from any measures affecting its obligation. There is no subject over which it is of greater moment for the State to preserve its power than that of taxation. Immunity from taxation, constituting in these cases a part of the contract with the government, is, by the reservation of power such as is contained in the law of 1841, subject to be revoked equally with any other provision of the charter whenever the legislature may deem it expedient for the public interests that the revocation shall be made. The reservation affects the entire relation between the State and the corporation, and places under legislative control all rights, privileges and immunities derived by its charter directly from the State." So in Railroad Co. v. Maine, 96 U. S. 499, 510, where the question was as to the liability to taxation of a consolidated corporation which came into existence while a general statute was in force, providing that any act of incorporation subsequently passed might be amended, altered or repealed at the pleasure of the legislature, in the same manner as if an express provision to that effect were therein contained, unless there was in the act of incorporation an express limitation or provision to the contrary. In that case the court said: "There was
Opinion of the Court.
no limitation in the act authorizing the consolidation, which was the act of incorporation of the new company, upon the legislative power of amendment and alteration, and of course there was none upon the extent or mode of taxation which might be subsequently adopted. By the reservation in the law of 1831, which is to be considered as if embodied in that act, the State retained the power to alter it in all particulars constituting the grant to the new company formed under it, of corporate rights, privileges and immunities. The existence of the corporation and its franchises and immunities, derived directly from the State, were thus kept under its control." To the same effect are Railroad Co. v. Georgia, 98 U. S. 359, 365; Hoge v. Railroad Co., 99 U. S. 348, 353; Sinking Fund Cases, 99 U. S. 700, 720; Greenwood v. Freight Co., 105 U. S. 13, 21; Close v. Glenwood Cemetery, 107 U. S. 466, 476; Spring Valley Water Works Co. v. Schottler, 110 U. S. 347, 352; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683, 696; Gibbs v. Consolidated Gas Co., 130 U. S. 396, 408; Sioux City Street Railway v. Sioux City, 138 U. S. 98, 108.
In harmony with these views is the decision of the Court of Appeals of Kentucky in Griffin v. Kentucky Insurance Company, 3 Bush, 592, where the question was as to the validity of an act, passed in 1868, repealing the charter of an insurance com pany, granted in 1865, and which did not expressly reserve the power of repeal. The court said: "The charter was certainly a contract with a legal obligation which could not be constitutionally impaired by ordinary legislation. But what is its obligation? Had the charter itself reserved the power to repeal it, that reservation would have been part of the contract, and have moulded its obligation accordingly; and such qualified obligation would not have been impaired by an exercise of that power." After observing that although there was no such reservation in the company's charter there was one in the act of 1856, the proviso of which, while securing the rights of beneficiaries and others, did not affect the mere power to repeal the franchise, the court proceeded: "That statute  in its prospective operation is constitutional, and therefore a law of the State; and, as it has never been repealed, it
Opinion of the Court.
applies to the charter of The Kentucky Insurance Company,' unless, as argued, the non-reservation in the charter itself of power to amend or repeal it implied a repeal, as to it, of the general statute. But there being nothing in the language of the charter importing any such intention, if the mere pretermission of special reservation of the power to amend or repeal should be construed as a negation of the power, the statute of 1856 would be superflous and inoperative; because, in relation to charters reserving the power, there was no necessity for that enactment, which therefore was intended to operate only on charters which do not reserve the power already reserved by statute. Then, was this general reservation of power, like a special reservation in the charter itself, a part of the contract; or was the contract made subject to it, and the obligation defined or modified by it? We think so. And, whatever might be thought of the policy of such legislation, or of the policy or justice of the repealing statute over which the judiciary has no jurisdiction, our conclusion as to the mere power of repeal is, as we think, sustained by reason and abundant authority."
It is, however, contended that the exemption from taxation could not be withdrawn while the water company remained under the obligation imposed by the first section of the act of 1882 to furnish water to the city for fire protection, free of charge. But no such obligation remained after the passage of the act of 1886, which, as we have seen, had the effect to withdraw the immunity from taxation granted by the second section of the act of 1882. In determining the object and scope of the act of 1882, we must look at all of its provisions. The water company was under a duty by its charter, passed before the act of 1856, to furnish water for the extinguishment of fires and the cleansing of streets, not free of charge, but upon such terms as might be agreed upon by it and the city. And the legislature certainly did not assume to impose upon it the obligation to furnish water, for fire protection, free of charge, except in connection with the grant to it of immunity from taxation. Accepting, however, the benefits of this exemption from taxation, it became bound to supply
Opinion of the Court.
water for public purposes, free of charge. But that obligation remained only so long as the exemption continued in force. The act of 1882 is to be regarded as an entirety, and meant nothing more than that the company should furnish water for fire protection, free of charge, so long as the immunity from taxation continued. This view is in harmony with the act of 1856, which expressly declares that whilst privileges and franchises granted to corporations, after its passage, could be changed or repealed, no amendment or repeal should impair other rights previously vested. The effect of the withdrawal of the immunity from taxation was, therefore, to leave the water company in the position it was before the passage of the act of 1882 in respect to its right to charge for water furnished for public fire cisterns, fire plugs or hydrants.
Much reliance was placed by the plaintiff upon Commissioners Sinking Fund v. Green and Barren River Navigation Co., 79 Kentucky, 73, 75, 83. But there is nothing in that case inconsistent with the views we have expressed. It was there decided that the legislature could not consistently with the constitution, or with the above statute of 1856, take from the Green and Barren River Navigation Company, without making compensation therefor, the right it acquired under a contract with the State, concluded in 1868, to take, for a term of years, tolls from vessels navigating Green and Barren Rivers, in consideration of its agreement, which had been fully performed, to maintain and keep in repair, at its own expense, such line of navigation. The case before us presents no such features. As already indicated, in losing an exemption from taxation the water company regained its rights to make such charges for water, furnished for fire protection, as it could rightfully have done before the act of 1882 was passed, and whilst its property was subject to taxation.
We have thus far considered the case as one between the State and the water company as a private corporation. It is not perceived that the result should be different if we regarded the case as one necessarily involving proprietary rights of the city of Louisville, or the rights of creditors whose debts were or are charged upon the sinking fund of that municipality.