retained by express reservation the right to amend or repeal the charter of this company. But it seems to us, upon general grounds, that the statute in question was nothing more than the exercise of ordinary legislative powers in maintaining the police of the state. It is here said that the common council of the city had no such interest in the question as disqualified them to act. 8. In a late case 10 it was held, that a summary remedy against defaulting stockholders, given by the charter of a corporation, is no part of the corporate franchise, and may be subsequently modified by the legislature.

9. And it has been held, that a statute providing compensation to the owners of animals killed or injured on railways by the passing trains, are so far in the nature of general police regulations as to come within the legitimate range of legislative action, and are equally binding upon existing corporations as upon those subsequently created.11

And a statute giving the representatives of persons killed a right of action to the same extent they would have had if in life, is no violation of the charter of railways before incorporated.12 But it has been held that a statute, allowing the gates of a plankroad company to be thrown open upon the report of commissioners that it was out of repair, was unconstitutional.13

10 N. E. & S. W. Alabama Railw. ex parte, 37 Alab. R. 679.

"Ind. &c. Railw. v. Kercheval, 16 Ind. R. 84. This question is here considerably discussed with reference to the effect of such enactments subsequent to the creation of the corporation.

12 Southwestern Railw. v. Paulk, 24 Ga. R. 356. See also Coosa River Steamboat Co. v. Barclay, 30 Alab. R. 120.

"Powell v. Sammons, 31 Alab. R. 552.

SECTION III.

Construction of exclusive Railway Grants.

1. Such grants are to receive a strict construc-4. Construction of statutes conferring powers

tion in favor of the company.

2. How far such companies can claim under

implied grant.

3. Ambiguous terms construed most strongly against the company.

for the public good more liberal than

those conferring powers for private profit. 5. Legislature may remedy defects in organi

zation.

§ 233. 1. The principle that exclusive grants, in derogation of common right, are to be strictly construed, is a principle of statutory exposition and construction as old almost as the English common law. And it has received frequent applications to railway charters, and especially in regard to those exclusive grants, by which subsequent similar incorporations are prohibited.1 It was held, that where a railway charter gave the company "authority to vary the route and change the location after the first selection had been made, whenever a cheaper and better route could be had, or whenever any obstacle to the location was found, either by difficulty of construction or procuring right of way at reasonable costs, that authority was not thereby conferred upon the company to re-locate their road after it was finished." 2

2. So, too, a stipulation in the charter of a railway that no other one shall be granted from one terminus to any place within five miles of the other terminus, is not violated by the grant of

1 1 Bradley v. New York and New Haven Railw., 21 Conn. R. 294; Boston & Lowell Railw. v. Andover and Wilmington Railw., 5 Cush. 375; Brocket v. Ohio and Penn. Railw., 14 Penn. St. 241; 6 Paige, 554. And the same doctrine has been lately maintained in the supreme federal court. Rice v. Railway Co., 1 Black (U. S.), 358; Jefferson, &c. Bank v. Skelly, Id. 436. 2 Moorhead v. Little Miami Railw., 17 Ohio R. 340. In Milnor v. The New Jersey Railw., 6 Am. Law Reg. 6, it was decided that the mere establishment of a particular line of road, and erection of a bridge in a particular location, in a town, by a railway company, after a controversy with the inhabitants with respect thereto, does not amount to a contract so as to preclude the company, after a lapse of time, from changing the direction of their line and the position of the bridge. See, upon this point, Glover v. Powell, 2 Stockton's Ch. 211; Ante, § 78, pl. 4.

a railway from one terminus of the former one to a point coming within the space included by two straight lines, drawn from the former terminus of the first road to points five miles distant from the other terminus, upon opposite sides but not within five miles of the actual terminus of the first road. But although a railway company cannot ordinarily claim an extension of its franchises by implication, it does take, by implication, such powers as are indispensable to the enjoyment of those expressly granted.1

* 3. And the same rule applies to the grant of lands for the purpose of a railway, even where the necessary use should involve the extension of ditches upon other lands of the grantor.5 And ambiguous words are to be construed most strongly against the company. But the right to take lands, or the right of way required for the purpose of constructing the roads, must include land for stations and other necessary works connected with the operation of the road.7

4. The construction of statutes conferring powers upon a corporation for the benefit of the community, should be much more enlarged and liberal for the purpose of accomplishing the general object proposed, than where powers are conferred upon a private

3 Boston & Lowell Railw. v. Andover & Wilmington Railw., 5 Cush. 375. And a like principle of construction was adopted in the late case of Hartford Bridge Co. v. Union Ferry Co., 29 Conn. R. 210. It was here held, that a legislative provision that the ferries between Hartford and East Hartford should be discontinued, and said towns never afterwards permitted to transport passengers across the river, meant only that the then existing ferries should be discontinued, and the towns not allowed to revive them, and was not abrogated by the establishment of a ferry between those same towns, though accommodating a different line of travel from that which naturally flowed to the bridge. 29 Conn. R. 210. * Enfield Toll-Bridge Co. v. H. & N. H. Railw., 17 Conn. R. 454; Springfield v. Conn. River Railw., 4 Cush. 63; White R. T. Co. v. Vt. C. Railw., 21 Vt. R. 595; State v. Baltimore and Ohio Railw., 6 Gill, 363. In this case it was held, that the directors being the sole judges of the propriety, and the means of declaring dividends, could not lawfully declare a money dividend of $ 3 to all stockholders of less than fifty shares each, and $ 1 in money and $ 2 in the bonds of the company to those having more than fifty shares.

Babcock v. The Western Railw., 9 Met. 553.

Perrine v. Chesapeake and Delaware Canal Co., 9 How. (U.S.) 172; Jefferson Branch Bank v. Skelly, 1 Black (U. S.), 436.

Nashville and C. Railw. v. Cowardin, 11 Humphrey, 348.

corporation for purposes of trade and business for profit, and in derogation of the rights of those whose property or business is affected thereby.8 Hence where the statute gave the Metropolitan Board of Works power to carry sewers into, through, or under any land subject only to making compensation for any damages done, it was held the board could not, under the Land Clauses Consolidation Act, be compelled to purchase the land or any easement therein.8

5. It has been held that the legislature have such power over corporations that they may remedy any defect in their organization.9

SECTION IV.

Discrimination as to Freight.

1. Discrimination between freight not prohib- | 2. Tax upon the tonnage of railways brought ited by the United States Constitution. from other states.

233 a. 1. The Constitution of the United States does not prohibit a discrimination between local freight and that which comes from another state; the distinction not being personal, is not within the prohibition. This decision seems to go solely upon the ground of the rights of citizens in one state having the rights of citizens in all the states. But a discrimination in freight, made expressly on the ground of the residence of the consignor or owner, would unquestionably be sufficiently personal to meet the provision of the United States Constitution.

2. There has been some question made in regard to one state having the power to tax the tonnage of railways coming from other states. There is an able and learned opinion of the common pleas of Dauphin County, Pennsylvania, by Judge Pearson, upon the question, in which he declares that the Pennsylvania statute does not come within the prohibition of the United States Constitution; it being only a legitimate mode of taxing the business and profits of railway companies.2

1121.

9

North London Railw. Co. v. Metropolitan Board of Works, 5 Jur. N. S.

• Illinois Grand Trunk Railw. Co. v. Cook, 29 Ill. R. 237.

1 Shipper v. Philadelphia Railw. Co., 47 Penn. St. 338.

That portion of the opinion bearing upon this point affords a valuable commentary upon the law affecting these questions of taxation.

SECTION V.

Opinion on the Constitutional Right of the States to tax Shares of Domestic Corporations held by Non-Residents.

I. The requirements of the statute of 1854 involve great inequality and injustice, as matter of taxation. In principle, it must involve, if legal, the right of destroying the stock of nonresidents, at the will of the legislature. For if the principle is legal, it may be extended, till it absorb the entire income of the stock. Hence some have attempted to imply, in every grant of a charter of incorporation, an exemption from taxation. But this is no more to be inferred, from such a grant, than from the grant of any other property, real or personal.

1. Corporations taxable for property, income, and faculty.

2. The capital stock or property of corporations clearly taxable to them.

3. Mr. Justice Wayne's exposition of the subject.

4. Three species of property taxable to the corporation :

1st. Capital Stock. 2d. Property. 3d. Franchise.

5. Shares taxable only to the owners.

II. If, then, the corporation is taxable for its capital stock, why may it not be taxed for the portion represented by shares owned by non-residents?

1. It is certain this could not be done, as to a portion of the capital represented by the shares of the resident owners.

2. Taxation implies an equalization upon the same class of property throughout the district taxed.

3. It is, therefore, not competent to tax property of the same class, at different rutes, in different portions of the district taxed.

III. But it may be urged that this rule does not extend to non-residents.

1. As to real estate, a different mode of appraisal, on account of the non-residence of the owner, will not render the tax void.

2. But non-resident citizens and aliens do not stand upon equal footing, as to taxation. IV. The United States Constitution secures to non-resident citizens of any of the United States the right of equal taxation with the citizens resident within the state where the tax is levied.

1. The article in the old Confederation, compared with that in the present Constitution, upon this subject.

2. This article has always been regarded as having reference to acquiring and holding property in the several states by the citizens of other states.

3. This view was early adopted, when the subject was fresh in the minds of all, and while the framers of the Constitution were upon the bench and at the bar.

4. Two decisions of the Maryland Court of Appeals stated, wherein it is held to have chief reference to taxation.

5. The opinion of Mr. Justice Washington stated, wherein he held similar views.

6. Cases cited from the Court of Appeals in Virginia and Kentucky, holding similar views.

7. A case from Alabama, expressly deciding the very point, within the last few years, stated.

8. The course of decision is uniform in that direction, and there is nothing to oppose it.