Citizens' Sav Bank of Owensboro v. Owensboro/Dissent Brown

Mr. Justice BROWN, dissenting.

The cogency with which the opinion of the court is expressed is calculated to awaken a distruct as to the soundness of any conflicting views; but the very fact that the court to which this writ of error was issued, only two years before the decree was pronounced which this court has affirmed, came to a precisely opposite conclusion upon the same state of facts, indicates, at least, that the question is not free from a reasonable doubt. Indeed, the judiciary of Kentucky appears to be about equally divided upon the subject.

The dominant question in the case is whether the written acceptance by the bank of the proposition contained in the act of 1886, known as the 'Hewitt Act,' constituted a contract which neither the legislature nor the bank could repudiate at pleasure. As stated in the opinion of the court, the bank was chartered in 1884, with a provision that its life should continue for 30 years, and that a payment of 50 cents on each $100 of stock should 'be in full of all tax and bonus thereon of every kind.' This charter fell under the provisions of the prior act of 1856, declaring that all such charters should be subject to amendment or repeal at the will of the legislature. There seems, however, to have been some dispute as to whether, under the power to amend, it was within the competency of the legislature to increase this tax during the life of the charter, without a violation of the fourteenth amendment to the federal constitution. To settle this question beyond peradventure, the legislature, in 1886, inaugurated a new policy, and in the Hewitt act made a distinct proposition that, if the banks and corporations interested, with the consent of the majority in interest of their stockholders, at a regular meeting thereof, should give their consent to the levying of a tax of 75 cents on each share equal to $100, and agree to pay the same as therein provided, and would agree to waive and release all right under the act of congress, or under their charters, to a different mode or smaller rate of taxation, and should evidence such consent by writing under the seal of the bank delivered to the governor of the commonwealth, 'such bank and its shares of stock should be exempt from all other taxation whatever, so long as said tax shall be paid during the corporate existence of such bank.' There was a further provision that, in case of refusal to enter into this compact, the bank should be assessed as directed by a previous section, and such state, county, and municipal taxes imposed as were imposed on the assessed taxable property in the hands of individuals.

It is true that this act was made expressly subject to the prior act of 1856, declaring that all charters and grants to corporations should be subject to amendment or repeal at the will of the legislature; but this very act limited the power to repeal and amend to cases where a 'contrary intent' was not 'therein plainly expressed.' In other words, that while such charters or grants were generally subject to amendment or repeal, if language were used by the legislature indicating clearly an intention that the privileges and franchises therein granted should not be subject to amendment or repeal, it was perfectly competent to do so, and the stipulation was binding. There was a further provision that no amendment or repeal should 'impair other rights previously vested.' How, then, could such intent to limit its own powers be manifested by the legislature? It will probably be conceded that, if the grant or charter contained a clause to the effect that any particular privilege therein granted should not be subject to amendment or repeal, it would be sufficient; but it seems to me equally clear that if it contained other language plainly evincing an intent that a particular clause should be irrepealable for a certain length of time, or if it contained a proposition from which the legislature could not withdraw without a breach of faith towards those who had accepted its terms, it could not be intended that such con ract, if accepted, should be subject to repudiation. Conceding to its fullest extent the doctrine of the Dartmouth College Case, that the charter of a corporation is a contract, it follows that so far as it is a charter it is, under the act of 1856, subject to amendment or repeal; but so far as the legislature departs from the main object of the charter of granting privileges and franchises, and invites its corporations to enter into written contracts with it, requires such contracts to be executed in an unusual form, and to receive the consent, not only of the directors, but of a majority of its stockholders, and, further, that they be made under seal and delivered to the governor of the commonwealth, that then it evinces an intent, as clearly as language can express it, that such contract shall be binding, and that, in respect thereto, it yields up its right to amendment or repeal. New Jersey v. Yard, 95 U.S. 104. To hold that a contract thus solemnly entered into may be repudiated at the next session of the legislature is practically to say that the legislature may set a trap for its corporations, and that, after it has enticed them into it by the offer of more favorable terms than they otherwise could obtain, it may repudiate its own obligations, without restoring to the corporations what it had previously induced them to give up.

The difficulty with the position of the court is that it renders it impossible for the commonwealth to enter into a contract with one of its own corporations which it may not repudiate at the next session of its legislature. If capital may be enticed into the state under its solemn promise that certain privileges shall be granted, or that it shall be subject to a certain specified rate of taxation, which may be withdrawn at any moment, it can scarcely complain if foreign capital refuses to be tempted by such illusory offers. I see no reason why, under the decision of the court, if the legislature should enter into a compact with one of its own corporations to perform a great public work, it may not, after capital has been largely invested therein, and the work entered upon, under the guise of amending the grant, abrogate its contract and leave the corporation practically defenseless. Indeed, it seems to me that it is not creditable to the legislature to impute to it an intent to subject corporations, which had accepted the benefits of the Hewitt act, to the rate of taxation prescribed by the act of 1892 providing for wholly different mode of assessment and taxation, and that it is more reasonable to assume that the taxing officers of the city of Owensboro exceeded their authority in attempting to exact the taxes in question.

The cases cited in the opinion of the court are not in conflict with the position here assumed. In Tomlinson v. Jessup, 15 Wall. 454, it was decided that an act of the legislature of South Carolina, passed in 1851, incorporating the Northeastern Railroad Company, and a subsequent act passed in 1855, providing that its stack should be exempt from taxation during the continuance of the charter, were subservient to a general act passed in 1841, reserving the right to amend, alter, or repeal every such charter, unless the act granting such charter should, in express terms, except it. As the amended charter in question contained no clause excepting it from the provisions of the general act of 1841, it was held that its property might be taxed by subsequent legislation. The case differs from the one under consideration, in the fact that the amended charter contained no exception taking it out of the act of 1841, and that there was no express contract in that charter that no tax should be subsequently imposed. There was nothing to indicate that this charter was not intended to fall within the restrictions of the act of 1841.

In Railroad Co. v. Maine, 96 U.S. 499, there was a similar general law, passed in 1831, declaring any act of incorporation liable to be amended, altered, or repealed at the pleasure of the legislat re, unless there was 'an express limitation or provision to the contrary.' It was held that an act of the legislature passed in 1856, authorizing corporations to consolidate and form a new corporation, was an act of incorporation of a new company, and, there being in this act no limitation upon the power of amendment, alteration, and repeal, the state retained the power to alter it in all particulars, constituting the grant of corporate rights, privileges, and immunities to the new company, and that a limitation upon the taxing power of the state prescribed in the charters of the old companies ceased upon their consolidation, though it was said that 'rights and interests acquired by the company, not constituting a part of the contract of incorporation, stand upon a different footing.' In its application to this case it is subject to the same criticism as that of Tomlinson v. Jessup.

The case of Water Co. v. Clark, 143 U.S. 1, 12 Sup. Ct. 346, arose under the same act of Kentucky of 1856. In that case an immunity from taxation, conferred upon the water company by an act passed in 1882, was withdrawn by a subsequent act passed in 1886, and it was held that, as the act of 1882 contained no clause that 'plainly expressed' an intention not to exercise the power reserved by the statute of 1856 to amend or repeal, at the will of the legislature, all charters or grants to corporations, the act was subject to that general statute, for the very reason that there was no 'contrary intent' 'plainly expressed.' The opinion harmonizes completely with the position here assumed, and contains a clear inference that, where a subsequent act plainly evinces an intention on the part of the legislature that the general statute of 1856 should not apply, such intention will be respected and will control the operation of the general statute. If the Hewitt act does not evince such intention, of course the whole argument falls to the ground, but it seems to me that its language in this particular is too clear to be disregarded.

The recent case of City of Covington v. Kentucky, 173 U.S. 231, 19 Sup. Ct. 383, is of the same tenor. An act passed in 1886, authorizing the city of Covington to build a system of waterworks, contained a provision that they should 'remain forever exempt from state, county, and city tax.' This was held to be subject to the act of 1856, providing for the amendment or repeal at the will of the legislature, unless a contrary intent be therein plainly expressed. It was very properly held that there was nothing in the act of 1886 plainly expressing an intent that the provision exempting the property from taxation was not subject to repeal, but the whole theory of this dissent is embodied in the proposition that there was in the Hewitt act a plainly expressed intent that it should not be amended or repealed to the prejudice of banks accepting its terms. There was a plain intimation in that opinion that if the act of 1886 had contained evidence of such intent it would have been held to repeal the act of 1856 to that extent. 'Before a statute,' said the court, 'particularly one relating to taxation,-should be held to be irrepealable, or not subject to amendment, an intent not to repeal or amend must be so directly and unmistakably expressed as to leave no room for doubt; otherwise, the intent is not plainly expressed. It is not so expressed when the existence of the intent arises only from inference or conjecture.'

Such intent was found by this court in New Jersey v. Yard, 95 U.S. 104, in the fact that there was in the supplemental charter of the corporation, precisely as in the Hewitt act, (1) a subject of dispute, and fair adjustment of it, for a valuable consideration, on both sides; (2) the contract assumed, by legislative requirement, the shape of a formal written contract; (3) the terms of the contract, that 'this tax shall be in lieu and satisfaction of all other taxation or imposition whatsoever by or under the authority of this state or any l w thereof,' excluded, in view of the whole transaction, the right of the state to revoke it at pleasure. There was the same provision as in the Hewitt act, that the section providing for a commutation of taxes should not go into effect, or be binding upon the company, until it had signified its assent under its corporate seal, and filed it in the office of the secretary of state. The language of Mr. Justice Miller is so pertinent that I cannot forbear quoting the following paragraph: 'Can it be believed that it was intended by either party to this contract that, after it was signed by both parties, one was bound forever, and the other only for a day? That it was intended to be a part of the contract that the state of New Jersey was, at her option, to be bound or not? That there was implied in it, when it was offered to the acceptance of the company, the right on the part of the legislature to alter or amend it at pleasure? If the state intended to reserve this right, what necessity for asking the company to accept in such formal manner the terms of a contract which the state could at any time make to suit itself?' I find it difficult to see how that case and the one under consideration can stand together.

So far as the court of appeals of Kentucky had spoken upon this question, prior to the decision which is here affirmed, it was uniformly in favor of the position taken in this dissent. In Franklin County Court v. Deposit Bank of Frankfort, 87 Ky. 370, 9 S. W. 212, it was held that an act which continued the life of a charter to a period beyond the time fixed for its expiration, and reserved the corporate organization, privileges, powers, duties, and rights, was an extension of an old charter, and not the grant of a new one; that an act passed in 1858 'plainly expressed' an intention that the act of 1856 should not apply to it, and that such intent was evinced by the provision that the appellee bank should establish a branch at Columbus; 'that the amount of its circulation should not be greater than the amount of its capital stock actually paid in; that it should, in addition to the fifty cents per share of its capital stock, pay annually fifty cents upon each one hundred dollars of its contingent fund; that it should be subject to all the limitations, conditions, and duties imposed upon it by the act of incorporation; that it should formally accept the terms of extension.'

I desire only to add that in Com. v. Farmers' Bank of Kentucky, 97 Ky. 590, 31 S. W. 1013, it was held, by the same majority of the court which subsequently overruled it, that there existed in the Hewitt act 'every element of a contract between the state and the banks, and, with such a consideration as will uphold it, no reasonable doubt can be entertained that such was the purpose of the parties to it.' 'We are satisfied,' said the court, 'after a careful consideration of this question, that the parties making the contract never contemplated or intended that the act of 1856 should apply to this contract after its acceptance by the banks, and that such an acceptance was necessary to make the contract complete between the parties.' The argument is a powerful demonstration of the existence of an irrevocable contract; but the court of appeals subsequently overruled this decision, and this court has affirmed its action, and in addition thereto has pronounced an opinion seemingly so inconsistent with New Jersey v. Yard as to practically amount to an overruling of that case. These cases, however, are but a reaffirmance of a principle which the same court had previously laid down in Commissioners of Sinking Fund v. Green & Barren River Nav. Co., 79 Ky. 73, and Com. v. Owensboro & N. R. Co., 95 Ky. 60, 23 S. W. 868, that a distinct contract contained in a charter was not subject to the act of 1856. Indeed, I do not understand upon what other theory a positive acceptance of the taxation imposed by the Hewitt act was required of these banks.