Mercantile Bank v. Tennessee/Opinion of the Court

By the original charter granted to the Gayoso Savings Institution in 1856, under which an organization was effected and the institution did business for many years, an exemption was granted to it similar to that granted in the Case of Bank of Commerce (decided at this time) 16 Sup. Ct. 456. That exemption was applicable to the shareholders upon their shares of stock, and did not apply to the capital stock of the institution. The shareholders in this case have been assessed at a greater rate than is permitted by the third section of the charter in question, and the assessment would therefore be void, if that section is applicable to this case.

The corporation plaintiff in error can make title to the charter in question only by virtue of the sale thereof under the decree in the suit of Lanier against the Gayoso Savings Institution, which was commenced in 1869. There is not a particle of evidence which in terms shows the transfer of the shares of stock in that institution owned by its shareholders at the time when the charter was sold, nor is there any evidence from which such transfer of stock by those shareholders to Taylor and his associates can properly be inferred. Neither they nor their assigness of the charter can claim to be the same original corporation by reason of any previous purchase of specific shares held by the former shareholders. The record shows that the receiver was ordered 'to sell at public auction, to the highest bidder, for cash, the charter of the Gayoso Savings Institution, together with all the rights and privileges thereunder.' It was the charter which the receiver assumed to sell, and which alone he did sell, and not any specific shares of stock. The report of the receiver shows that under the order, which was made on the 11th of June, 1880, he advertised the charter of the Gayoso Savings Institution for sale on the 29th day of June, 1880, 'together with all rights, privileges, and franchises thereunder,' and that on the last-named day the charter was struck off and sold to Julius A. Taylor at and for the sum of $201, 'his being the highest, best, and last bid; that such bid was followed by paying to the receiver the amount of same in cash, which the receiver holds subject to the order of the court.' On the 21st of July, 1880, the chancellor made a decree in which it is stated that the cause 'came on to be further heard on the report of sale by the receiver filed herein, which is in words and figures following [here insert report]; and, there being no exception to said report, the same is in all things confirmed, and the title to the charter of the Gayoso Savings Institution, with all the powers, privileges, and franchises thereunto belonging, is hereby vested in J. A. Taylor, his heirs and assigns.' This citation from the record is clear evidence of what the transaction purported to be. There is no mention or hint of any assignment or transfer of the shares of stock to the purchaser of the charter by the then owners of such shares, and it seems to be quite clear that none such was ever made. At any rate, there is not the slightest proof upon the subject showing affirmatively that it was made. At the time of the sale of the charter under the decree in the Lanier suit, the constitution of Tennessee had been adopted by the people in 1870, and since that time has been in full force and operation. That constitution prohibited exemptions from taxation, and provided that all property-real, personal, or mixed-should be taxed, excepting such as, in explicit terms, was exempt, stating what property might be and what should be exempt from taxation, and directing that all the rest shall be taxed.

We may inquire now what was the effect of the sale of the charter under the decree in the Lanier case. We have been referred to no statute authorizing the sale of charters of corporations circumstanced as the Gayoso Savings Institution was at the time of this sale, and it is questionable, to say the least, whether any title to the charter passed by the proceedings under the decree in the Lanier case. In order to show the existence of a contract of exemption, the corporation plaintiff in error must connect itself with, and show that it or its shareholders are entitled to the benefit of, the provision of exemption contained in the charter of 1856. Certainly no greater power was exercised by the court of chancery in decreeing the sale of the charter in the Lanier suit than would have been the case had a statute existed providing for the mortgaging of the charter, and its subsequent sale at foreclosure on breach of condition named in the mortgage. Such a sale, it has been held, does not transfer to the purchaser the franchise to be a corporation, but only the right to reorganize as a corporation, subject to the laws, constitutional and otherwise, existing at the time of the reorganization. Memphis & L. R. Co. v. Railroad Com'rs, 112 U.S. 609, 5 Sup. Ct. 299. The franchise to be a corporation is distinguished from the franchise to exercise as a corporation the banking powers named in this charter. The exemption from taxation contained in the third section of the act of 1856 was a personal privilege in favor of the corporation therein specifically referred to, and it did not pass with the sale of that charter, and there is no express or clear in tention of the law requiring that exemption to pass as a continuing franchise to the purchaser thereof. Morgan v. Louisiana, 93 U.S. 217; Wilson v. Gaines, 103 U.S. 417; Louisville & N. R. Co. v. Palmes, 109 U.S. 244, 3 Sup. Ct. 193. In the face of the constitutional provision prohibiting exemption, it can still less be claimed that the sale of the charter carried the exemption. All that Mr. Taylor and his associates could have acquired by the purchase of the charter, after the adoption of the constitution of 1870, if they acquired anything, were the rights and privileges mentioned in the charter, and subject to the provisions of the constitution and laws existing at the time of such purchase.

The meeting of Julius A. Taylor and his eight associates on the 5th of March, 1881, was nothing more than an attempt to reorganize by reason of the sale to Taylor under the decree in the Lanier suit. Immediately prior to the organization of that meeting, Taylor and his associates had subscribed for and agreed to take stock in the Gayoso Savings Institution of Memphis, Tenn., to the amount set opposite their respective names, and to pay the same in such manner as might be ordered by the board of directors, having that day paid in the sum of one dollar on each share. These subscribers for stock at once held a meeting, assuming to act as stockholders of the Gayoso Savings Institution, and attempting to reorganize that institution by virtue of the purchase of the original charter; and they assumed, by these proceedings, to become an organization and corporation known as the Gayoso Savings Institution. It is, at least, very doubtful whether they succeeded in this way in accomplishing that purpose. However that may be, they claimed to be and assumed to act as a corporation known by that name; and there was, so far as appears, no other corporation of that name, and no other proceeding on the part of any one claiming to be that corporation, or to have any rights therein. Assuming to act as a corporation by the name of the Gayoso Savings Institution of Memphis, Tenn., is by no means the same as being in fact the original corporation whose charter they purchased, and whose corporate name they took. So far, by their action they had not become a corporation at all, but were simply assuming to be one. The legislature, however, passed an act on the 26th of March, 1881, changing the name of the Gayoso Savings Institution, which these stockholders claimed and assumed to be, to the name of the Mercantile Bank of Memphis, and thus recognized them as a corporation, and from that time the corporation continued regularly and without intermission until 1883, when Taylor and his associates transferred their stock, by regular and proper transfer of the certificates of stock, to John R. Godwin and his associates, who, since the 17th of April, 1883, have been doing a regular banking business under the charter down to the present time. They are the successors of the purchasers of the charter, and have been substantially recognized as a corporation by the legislature.

It may thus be that the corporation plaintiff in error is in fact organized and doing business under the general provisions of the charter of 1856 by virtue of the sale of the charter and the recognition of the legislature, and exercising the banking franchise and other rights granted therein to the original shareholders, but not as the identical corporation originally incorporated, and for that reason it is without the immunity from taxation contained in the third section of the charter. There is nothing, therefore, legally inconsistent in treating the corporation of plaintiff in error as a corporation doing business by virtue of the charter of 1856, and the legislative recognition accorded to Taylor and his associates in 1881, while at the same time the exemption contained in that same charter is held not to have passed by any of the proceedings above mentioned. This view of the case disposes of the objection taken by plaintiff in error to the position of the state as being inconsistent, in that it assumes, by taxing the corporation plaintiff in error or its shareholders, and by its bill of complaint in this suit, to treat the former as a corporation, while at the same time denying it the exemption contained in the third section of the act of 1856. We agree that the bill of complaint and the supplemental bill in this suit both proceed upon an implication that the corporation plaintiff in error is actually a corporation under the provisions of the charter of 1856 alone, and that it has no other charter under which to justify its corporate existence than the one just named; but, for the reasons already given, the attitude of the state is not inconsistent, in treating the plaintiff in error as a corporation, and at the same time denying to it any title to the exemption claimed. The corporation may exist under and by virtue of the purchase of the charter at the receiver's sale, and the legislative recognition and the assumption of the state that it is a corporation, and yet not have the title to the exemption, because it is not, in fact or in law, the same corporation originally incorporated.

The judgment must be affirmed.

Mr. Justice WHITE concurs in the result.

MERCANTILE BANK v. TENNESSEE AND SHELBY COUNTY No. 677, by stipulation, abides the event in the foregoing case.