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adjudication was had in regard to national banks, of the contract will not be sanctioned. There was, although the cases as to the national banks were in fact, a necessity for the State to apply the act of decided subsequent to the passage of the Hewitt | 1856 to Article II; other corporations, as well as bill, City National Bank of Paducah v. City of banks, organized since 1856, were liable to this Paducah, 10 Ky. L. Rep. ; Covington City National | tax, whether they accepted the provisions of the Bank v. City of Covington, 21 Fed. Rep.
Hewitt bill or not, and section 4 was inserted for The Legislature saw the obstacle in the way of the express purpose of creating a contract between increasing the taxation on these banks, and the the old banks and the national banks on the one pational banks, standing on the same footing with side, and the State on the other, by which the taxathe State banks, it became apparent that it was to tion on these banks might be increased, and, at the the interest of the State to hold out inducements to same time, placing all the banks accepting its terms all the banks, that equality as between them might on the same footing; if no acceptance had been exist, and, at the same time, increase the taxation. | made, there was no reason why the act could not The banks had not asked for any amendments to
have been enforced as against these corporations their charters, nor was the effort made by the Leg- coming within the act of 1856; but neither the islature to repeal or amend the charters; the State banks nor the State ever intended to perform such was attempting to enact a general law, entitled an idle act as entering into this solemn agree" Revenue and Taxation," applying to all subjects ment that might be disregarded by the State whenof taxation, and to all kinds of property. The tax
ever its representatives saw proper. The rule is, in regard to banks, under this general law, was
if a statute is susceptible of two constructions, that fixed at seventy-five cents as to all banks, and to all which is consistent with public policy will be folcorporations required by law to be taxed on their lowed, and no meaning given a statute that will capital stock; and as to the old banks and the lead to an absurdity. The case before us is much national banks, the surrender of their rights was
stronger for the banks than that of Yard v. New made to depend upon their acceptance of the propo- Jersey. Here the old banks had contract rights, sition made to them by the State, by the terms of sustained by the adjudication of the courts of the which they were to pay the tax imposed by the State, to the effect that they were not liable to local Hewitt bill and he released from further taxation taxation; and the same adjudication followed in so long as their charters continued. Why, then, reference to national banks. The contract was not did the Legislature annex to Article II, of the only executed, but based on a valuable considerarevenue bill, the provisions of the act of 1856 ? tion. If there was any doubt as to its meaning, No contract had been made when the bill passed, that doubt would be construed for the State; but, as there had been no acceptance by the banks, and
when considering the entire article, the intention of not until the adjournment of the Legislature was
the Legislature, it seems to us, is manifest. This the contract consummated. It was provided in increased tax, under the former Constitution, as beArticle II that the acceptance had to be made fore stated, went to the State and not to the munibefore the Legislature again assembled, and the act cipalities. Such was the policy of the State when of 1856 could only have authorized the reservation the contract was made, and we perceive no reason of power to repeal or withdraw this proposition, if for abrogating its terms, so as to withdraw from the within the period fixed there was no acceptance by State treasury this additional tax the banks bave any of the banks of its provisions. The right to been paying, amounting to $125,000 annually, and the franchise, or the exercise of the privileges transfer it to the cities to aid in discharging local granted, was not involved in the legislation, but burdens. It requires no judicial utterance to show the banks, with their charters in full force, were that, under the National Banking Act, where the asked by the Legislature to make an agreement as rate of interest is fixed at six per cent, or, as the to a rate of taxation that could not have otherwise State law provides, and a forfeiture of the entire inbeen enforced against either the old banks or the terest if more is charged, that these banks, by the national banks. The corporations had the right to imposition of local burdens, cannot be taxed as contract by reason of their charters, and, dealing at much as 2} per cent in any locality, when the averarm's length with the State, accepted the terms and age taxation of State banks will not exceed half conditions offered in good faith; and the question that sum. here is, not the right of the State to repeal or In the case of Lionberger v. Rouse, reported in amend their charters, but the right of the State to 105 United States, after the national banking syscancel this contract, without the consent of the tem went into effect, the Legislature of Missouri banks. The right of the State to repeal the fran- passed a law authorizing the banks of issue in that chise or amend the charter is not here questioned, State, ten in number, to enter into the new system. when subject to the act of 1856, but the repudiation | Eight of those banks became national banks, and two of them refused to do so. The two old banks, contract, is now insisting upon a legislative rescisas the Supreme Court of the United States held in sion of the contract, and placing the old banks at that case, had a contract right with the State not to least in a position where they are to pay only fifty be taxed exceeding one per cent, and the State was cents on shares of $100, and leaving the national powerless to increase the tax. The assessment of banks subject to a greater rate of taxation. This the plaintiff's shares of stock in the national bank repeal, if sustained, is, in effect, the creation of was at the rate of nearly two per cent. It was con- three or more new banks, with a rate of taxation tended that this was an unjust discrimination in much less than that imposed on the national banks, favor of the two State banks, and the Supreme and making a discrimination in favor of the old Court said that this national bank, or its shares, was
banks and their branches that gives them a monopnot taxed for a greater sum than any other moneyed oly of the banking business of the State. institutions of the State, and the State was power- The old banks, with a capital of five millions, at less to change its contract with the two remaining the time the Hewitt bill passed, will be relegated banks of issue, it was not such a discrimination as to the condition they were in when the contract was would authorize the court to interfere. While there made, as was held by the Supreme Court in the are exceeding sixty State bauks, the Bank of Ken- case of Clark v. Water Company, reported in 143 tucky and its branches, the Northern Bank and its U. S., and that is an exemption from local burdens branches, the Bank of Louisville, and the Farmers' with a tax of one-half of one per cent to the State. Bank of Kentucky and its branches, were at the The national banks witb a capital of ten millions passage of the Hewitt bill, and are now, regarded when the Hewitt law was enacted, and now inas the prominent banking institutions of the State, creased to twenty millions, will also be exempt from and, if with their capital and business rank, placed local burdens, because the State, in the exercise of before the Supreme Court, with a tax of only one the power now claimed, has abandoned the contract per cent, and the tax on the national banks placed under which taxation was equal and uniform, and at two per cent, the judgment of the Supreme Court voluntarily made an unjust discrimination, when in upon such a state of fact doubtless would have been its power to prevent it. Such consequences would similar to the decision of this court in the case of be disastrous to both the State and the municipalithe National Bank v. City of Paducah.
ties, the State losing the increased tax, and the muThe case of Lionberger v. Rouse has no bearing nicipalities, or the Legislature for them, without on this question or contract. Here the State was power to impose on national banks local burdens. not powerless to remedy the evil or prevent the dis- The banks have all practically accepted the provicrimination complained of in the Missouri case. The sions of the Hewitt bill, and the legislation repealLegislature devised a mode by which this discrimi- ing or cancelling the contract, being in violation of nation could be removed, however great or even in both the State and Federal Constitutions, leaves significant the difference in taxation might have been the Hewitt bill, as to the banks, in full force, and The national banks, recognizing the fact that they they must be taxed under its provisions, until the could be taxed as other moneyed capital, and desir-contract terminates. ing uniformity of taxation, and not one rate for one
These moneyed institutions are now paying, inbank and a different rate for another, surrendered cluding tax on surplus and realty, eighty cents, or their right or claim to be taxed as the old banks about that sum, on each share of stock of $100, were taxed, and entered into this agreement by
while the citizen taxpayer is paying only forty-two which a uniform system of taxation was adopted and a half cents; and, at last, it is a question for all banks, such as the State desired. The claim of
whether this difference in the taxation is to be paid the old banks and the national banks as to the mode
by the banks into the State treasury, as under the of taxing them was certainly not without founda- oid Constitution, or to the municipalities under the tion, for the reason already given, and the proposi
new Constitution. In the absence of this contract tion by the Legislature to settle these differences,
it would go to discharge local burdens, but with and this acceptance, was a wise and just solution of this contract in full force, it must be paid as to the the whole question.
amount and manner, as provided by the Hewitt bill The question presented by this legislative repeal of 1856, into the treasury of the State. is the opposite of the legislation in the Missouri bank case. In the one case there was no legisla
Judgment against the banks reversed, and retion making the discrimination, while in the case
manded for further proceedings consistent with the before us the State, after placing the banks, State opinion. and national, on the same footing as to taxation, hy Judges Lewis, Paynter and Guffy dissenting. the consent and agreement of all the parties to the Judge Paynter delivered dissenting opinion.
DECISION IN THE PULLMAN CO. CASE. matter on appeal. Judge Pryor followed Justice N June 1 Judge Baker handed down a decision Gaynor in denying a motion of Col. George H. Hart,
for plaintiff, to raise the amount of damages origiin the case of Attorney-General Maloney v.
nally prayed for, which, under the old law, was The Pulman Palace Car Co., in which the plaintiff
$5,000, The decision reversing him is written by claimed that the company had violated its charter Judge Bischoff, with Judges Daly and Bookstaver by conducting enterprises other than those for concurring. Judges Patterson, Dugro and McAdam which the State granted it a charter, and that the in other cases have decided as the General Term of charter should therefore be forfeited. The court
the Common Pleas has now decided. The court, sustained two of the charges against the company. after quoting the provision of the new Constitution One was that the company had exceeded its power that “the right of action
shall never be in becoming the owners of twenty-three acres of abrogated and the amount recoverable shall not be land in the town of Pullman, which had been put subject to any statutory limitation,” says: to no use, and the other was that it violated its
“The clear import of this is to attach the inhibicharter in becoming the owner of a part of the tion of any limit to all future recoveries, and so stock of the Pullman Iron and Steel Company. comprehends recoveries under rights of action
The court holds that the company had the right which had accrued at the time when the Constituto erect a ten-story office building in Chicago and tion went into effect, as well as recoveries under rent the greater part of it to tenants; that it has rights of action which might thereafter accrue. the right to sell intoxicating liquors in its cars, and That the language is sufficiently comprehensive to that in the purchase of land upon which the town include a retrospective as well as a prospective efof Pullman is built and the erection thereon of 2,200 fect affords no plausible ground for holding that dwelling-houses, to be rented to its employes, the the laiter effect was intended to be exclusive of the company did not violate its charter, but only took former. To restrict, therefore the operation of the mpon itself powers which were implied in the grant provision under review to recoveries under future of the Legislature. The company is also sustained rights of action requires distortion of the apparent in the erection of schools and a church in the town and unambiguous sense of the language used, that of Pullman, and the sale to the tenants of its sense in which the people must be presumed to houses of water and gas for the plants which the bave understood the provisions when it was adopted company owns.
by popular vote. We are not permitted to consider The twenty-three acres of land which is unoccu
any alleged and resultant hardship from such a propied the company will be compelled to sell under vision or to question the wisdom of its adoption, the decree of the court, and it will be compelled to
our office being at all times to give effect to the dispose of what stock it owns in the Pullman Iron supreme will of the people.” and Steel Company. These two interests in which
An effort was made to show by the debates on the the company was defeated by the court involved provision at the Constitutional Convention that no only about $50,000.
such effect was intended, but thic court says the deIf the Supreme Court sustains Judge Baker, the bates are not pertinent, as it has only to consider company will go on with its business undisturbed, what the peo »le meant by voting the provision. and with its methods of business practically unchanged by the suit of the attorney-general.
Abstracts of Recent Decisions.
ADMIRALTY - SHIPPING GENERAL AVERAGE. — NO LIMITATION OF AMOUNT RECOVERABLE IN AN ACTION FOR THE DEATH OF
The law of general average is part of the maritime
law, and not of the municipal law, and applies to A PERSON DECISION OF GENERAL
maritime adventures only. (Ralli v. Troop [U. S. TERM, COMMON PLEAS.
S. C.), 15 Sup. Ct. 656.) N the case of Maria Isola as administratrix of CARRIERS--DELIVERY TO BROKER. Where goods
Agostino Isola, who was killed in the construc- were shipped over the lines of connecting railways tion of the Havemeyer building, in May, 1892, to to a consignee designated in the bill of lading, and recover damages from J. & L. Weber and Michael on arrival at destination the receivers of the railway Powers, contractors, the General Term of the Court company which completed the transportation tendof Common Pleas has decided that by the new Con-ered delivery to that consignee, and he declined to stitution unlimited damages may be sued for in case receive the goods, the liability of the receivers as of deaths due to defendants' negligence, although common carriers thereupon ceased, and they bethe deaths occurred before the new Constitution came liable as warehousemen only, and as such were was adopted. This is the first determination of the chargeable with the duty of notifying the consignor
of the consignee's refusal to accept the goods, and INSURANCE POLICY-ISSUE BY AGENT. -An insurwith the further duty of holding the same subject ance policy issued by an agent of the company to a to the order of the consignor. (American Sugar-corporation of which he is a stockholder and officer Refining Co. v. McGhee [Ga.), 21 S. E. Rep. 383.) is void. (Greenwood Ice and Coal Company v. CARRIERS
NEGLIGENCE.—A pas- Georgia Home Ins. Co. (Miss.), 17 South. Rep. 83.) senger alighting from a moving train at the direc
SPECIFIC PERFORMANCE-PARTIES.--In an action tion of the conductor is not, as a matter of law,
to compel conveyance to complainants of certain guilty of contributory negligence, where there was
property, one who has disposed of the legal title to no appearance of danger either in the locality where all his interest in the property, and against whom he alighted, or the rate of speed of the train.
no relief is demanded, should not be made a party (Watkins v. Raleigh & A. Air-Line R. Co. (N. Car. ], ) to the action. (Burrill v. Garst [R. I.), 31 Atl. Rep. 21 S. E. Rep. 409.)
436.) CONFLICT OF LAWS-ASSIGNMENT FOR CREDITORS.
VENLOR AND PURCHASER-STATUTE OF FRAUDS.-An assignment for the benefit of creditors, made in another State, under a statute providing that
When a purchaser of land goes into immediate creditors shall receive no benefit under the assign- possession and gives his vendor a note for the price,
which contains a description of the land and all ment, nor any part of the debtor's estate, unless
essential terms of the contract, the sale is taken out they first file a release of all claims other than such
of the statute of frauds. (Reynolds v. Kirk (Ala. ), as may be paid under the assignment, will not be
17 South. Rep. 95.) enforced in Iowa. (Franzen v. Hutchinson [Iowa), 62 N. W. Rep. 698.)
Will--EVIDENCE. -Evidence that a testatrix was CORPORATIONS EFFECT OF CERTIFICATE Under quite sick at the time her will was executed, and SEAL.—It seems that, where a corporation is not re
that after her recovery she stated that she could not quired by law or by its by-laws to keep official remember anything that bappened during her sickminutes of the proceedings of the board of direct- ness was not suflicient to prove a want of testaors, neither such corporation, nor any one claiming mentary capacity. (Henry v. Hall [Ala.], 17 South. under it, can go behind a resolution, certified by Rep. 187.) the secretary under the scal of the corporation, and show that such resolution was not, in fact, passed.
New Books and New Editions. (Prentiss Tool and Supply Co. v. Godchaux [U. S. C. C. of App.), 66 Fed. Rep. 234.)
COMMENTARIES ON THE LAW OF CORPORATIONS. BY CRIMINAL EVIDENCE
SEYMOUR D. THOMPSON, LL. D. IN Six VOLThe consent of a defendant to the amendment of an indictment to meet a variance in the proof being a matter of record, the terms of his consent are to hardly possible to enter into the details of a publi
Tlie scope of this work is so enormous that it is be determined from the record, and not from a bill
cation of six large volumes, each one containing of exceptions. (Stone v. State [Ala.), 17 South.
over one thousand pages. The first volume is diviRep. 114.)
ded into twenty-two chapters, the subjects of which CRIMINAL LAW
are: Nature and Kinds of Corporations; Creation Where deceased was killed while engaged, with by Special Charters; Acceptance of Special Charothers, in an attack on defendant, with sticks and ters; Amendments of Charters; Charters Granted clubs, an instruction withdrawing the question of by the Courts; Organization Under General Laws; self-defense from the jury, on the ground that Reorganization; Names of Corporations; Consolisticks and clubs are not deadly weapons, is erro- dation; Promotors; Irregular and De Facto Corpo
(Allen v. United States (U. S. S. C.), 15 rations; Constitutional Restraints upon the CreaS. C. Rep. 720.)
tion of Corporations and the Granting of Corporate DOWER-DEED OF RIGHT OF WAY.--A widow has Privileges; National Corporations; Place of Holdno dower in land which her husband, by an abso-ing Corporate Meetings and of Doing Corporate lute deed, in which she did not join, conveyed for Acts; Corporate Elections; A Motion of Officers; a right of way. (Chouteau v. Missouri Pac. Ry. Expulsion of Members; By-Laws; Nature of CapiCo. [Mo.), 30 S. W. Rep. 299.)
tal Stock and Shares in General; Who may become HUSBAND AND WIFE-PAYMENT OF WIFE'S MONEY. Shareholders in Corporations; The Contract of Sub-A husband, acting as the general agent of his scription, and Alteration of Contract. wife, cannot direct payments which he makes with The second volume continues and commences her money to be applied to his debts. (Gleaton v. with the twenty-third chapter, and goes through Tyler [S. Car.), 21 S. E. Rep. 333.)
the forty-second, and includes chapters on Condi
ARSON - CONFESSIONS.—
tional Stock Subscriptions; Effect of Fraud on rectors to Strangers and Creditors of the CorporaStock Subscriptions; The Surrender of Shares and tion Outside of Statute; Statutory Liability of DiRelease of Shareholders; Payment of shares; As- rectors and Officers to Creditors; Contribution and sessments and Calls; Forfeiture of Shares for Non- Subrogation; Compensation of Directors and Offipayment of Assessments; Actions by the Corpora- cers. tion against Shareholders for assessments; Evidence These are the only three volumes which we have in such Actions; Defense to Actions for Assess- received, as we understand the remaining three are ments; Limitation of Actions against Stockholders; not yet complete, but will be published within a Powers of the Corporation in relation to its own short time. The arrangement of the work into secShares; Increasing and Decreasing Capital Stock; tions, with the number of pages at the foot of each Dividends, Interest-Bearing, Preferred and Guaran- page, appears to us to be an admirable plan, which teed Stock; Transfers of Shares; Bona Fide Pur- will greatly increase the practical utility of the chasers of Shares; Pledges and Mortgages of
book. It will be with great pleasure that we shall Shares; Others Dealing in Shares; Execution and
review the remaining three volumes and give an attachment against Shares; Taxation of Shares and opinion of the work in its entirety. Published by Dividends.
the Bancroft-Whitney Co., San Francisco, Cal. The third volume commences with chapter 43
A MANUAL OF PUBLIC INTERNATIONAL LAW. BY and ends with chapter 85, and includes chapters on
THOMAS ALFRED WALKER, M. A., LL. D. Nature and Extent of Liability of Stockholders to Creditors at Common Law; Liability in Equity on
This is a very interesting manual on a subject the Ground that Capital is a Trust Fund for Cred
which has received more than the usual attention itors; Liability before Organization Complete and
and consideration from the public during the past Capital Paid in; Constitutional Provisions Creating year in view of the war between China and Japan, and and Abolishing Individual Liability; Construction other international disputes which have occurred. of Statutes Making Stockholders Personally Liable
The author of this work is a fellow and lecturer at for the Corporate Debts; Constitutional Questions Peterhouse, Cambridge, and the work was origiArising under such Statutes; Extraterritorial Force nally from the English press. The first chapter deals of such Statutes; Statutes Creating a Joint and with the definitions of International Law, and is Several Liability as Partners; Statutes Creating a followed by chapters on International Law of NorSeveral Liability; For what Debts these Statutes mal Relations, International Law of Abnormal Remake Stockholders Liable; Liability for Interest, lations, and Neutrality. Each of these parts is Fees and Costs; Statutes making Stockholders Lia- subdivided into several chapters which makes it ble for Debts due for Labor, Provisions, etc.; To most complete. The index of cases is very large what class of Shareholders Liability Attaches ; for a subject of this kind, with references to the Present and Past Members; Status and Liability of English and American reports. A very great adLegal and Equitable Owners of Shares; Divestiture
vantage of the work is the marginal notes, while of Liability by Transferring Shares; Liability of the index of contents gives an additional value and Executors, Administrators, Heirs · and Legatees;
makes the work of practical use to students of this Conditions Precedents to the right to Proceed
subject and to lawyers. The work is written in an against Stockholders; Effect of Judgment against easy, interesting and pleasant style, and really has the Corporation; Remedies and Procedure; Parties
more of the qualities of a history than a legal textto Proceedings by Creditors against Stockholders;
book, Published by MacMillan, 66 Fifth avenue, Proceedings in Equity; Right of Action in Receiver, New York city. Price, $2.50. Assignee, etc.; Proceedings by Garnishment; Executions against Stockholders; Questions of Pro
AMERICAN RAILROAD AND CORPORATION REPORTS, cedure; Defenses to Actions against Stockholders
VOLUME 10. EDITED AND ANNOTATED BY JOHN by or on behalf of Creditors; Limitation of Actions
LEWIS, AUTHOR OF "A TREATISE ON EMINENT by or on behalf of Creditors; Set-off; Contribution
DOMAIN IN THE UNITED STATES." among stockholders; Priorities among Creditors; Directors; Right to Office; Directors and Officers This is the tenth volume of a series which will de facto; Quorum of Directors, and Number that hereafter be published two in a year, and which can Act; Delegation of their Power by Directors; contain in full the most important decisions of the Powers of Directors; Obligations of Directors and year pertaining to railroads and corporations and Fiduciaries; General View of the Liability of Di- kindred subjects. Careful discrimination is shown rectors; Liability of Directors for Negligence; in the choice of decisions reported and care and Remedies of the Corporation or its Representative preparation of the cases reported in the index. against its Unfaithful Directors; Liability of Di- | Published by E. B. Myers & Co., Chicago.