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adjudication was had in regard to national banks, although the cases as to the national banks were decided subsequent to the passage of the Hewitt bill, City National Bank of Paducah v. City of Paducah, 10 Ky. L. Rep.; Covington City National Bank v. City of Covington, 21 Fed. Rep.

The Legislature saw the obstacle in the way of increasing the taxation on these banks, and the national banks, standing on the same footing with the State banks, it became apparent that it was to the interest of the State to hold out inducements to

all the banks, that equality as between them might exist, and, at the same time, increase the taxation. The banks had not asked for any amendments to their charters, nor was the effort made by the Legislature to repeal or amend the charters; the State was attempting to enact a general law, entitled "Revenue and Taxation," applying to all subjects of taxation, and to all kinds of property. The tax in regard to banks, under this general law, was fixed at seventy-five cents as to all banks, and to all corporations required by law to be taxed on their capital stock; and as to the old banks and the national banks, the surrender of their rights was made to depend upon their acceptance of the proposition made to them by the State, by the terms of which they were to pay the tax imposed by the Hewitt bill and be released from further taxation so long as their charters continued. Why, then, did the Legislature annex to Article II, of the revenue bill, the provisions of the act of 1856 ? No contract had been made when the bill passed, as there had been no acceptance by the banks, and not until the adjournment of the Legislature was the contract consummated. It was provided in Article II that the acceptance had to be made before the Legislature again assembled, and the act of 1856 could only have authorized the reservation of power to repeal or withdraw this proposition, if within the period fixed there was no acceptance by any of the banks of its provisions. The right to the franchise, or the exercise of the privileges granted, was not involved in the legislation, but the banks, with their charters in full force, were asked by the Legislature to make an agreement as to a rate of taxation that could not have otherwise been enforced against either the old banks or the national banks. The corporations had the right to contract by reason of their charters, and, dealing at arm's length with the State, accepted the terms and conditions offered in good faith; and the question here is, not the right of the State to repeal or amend their charters, but the right of the State to cancel this contract, without the consent of the banks. The right of the State to repeal the franchise or amend the charter is not here questioned, when subject to the act of 1856, but the repudiation

of the contract will not be sanctioned. There was, in fact, a necessity for the State to apply the act of 1856 to Article II; other corporations, as well as banks, organized since 1856, were liable to this tax, whether they accepted the provisions of the Hewitt bill or not, and section 4 was inserted for the express purpose of creating a contract between the old banks and the national banks on the one side, and the State on the other, by which the taxation on these banks might be increased, and, at the same time, placing all the banks accepting its terms on the same footing; if no acceptance had been | made, there was no reason why the act could not have been enforced as against these corporations coming within the act of 1856; but neither the banks nor the State ever intended to perform such an idle act as entering into this solemn agreement that might be disregarded by the State whenever its representatives saw proper. The rule is, if a statute is susceptible of two constructions, that which is consistent with public policy will be followed, and no meaning given a statute that will lead to an absurdity. The case before us is much stronger for the banks than that of Yard v. New Jersey. Here the old banks had contract rights, sustained by the adjudication of the courts of the State, to the effect that they were not liable to local taxation; and the same adjudication followed in reference to national banks. The contract was not only executed, but based on a valuable consideration. If there was any doubt as to its meaning, that doubt would be construed for the State; but, when considering the entire article, the intention of the Legislature, it seems to us, is manifest. This increased tax, under the former Constitution, as before stated, went to the State and not to the municipalities. Such was the policy of the State when the contract was made, and we perceive no reason for abrogating its terms, so as to withdraw from the State treasury this additional tax the banks have been paying, amounting to $125,000 annually, and transfer it to the cities to aid in discharging local burdens. It requires no judicial utterance to show that, under the National Banking Act, where the rate of interest is fixed at six per cent, or, as the State law provides, and a forfeiture of the entire interest if more is charged, that these banks, by the imposition of local burdens, cannot be taxed as much as 24 per cent in any locality, when the average taxation of State banks will not exceed half that sum.

In the case of Lionberger v. Rouse, reported in 105 United States, after the national banking system went into effect, the Legislature of Missouri passed a law authorizing the banks of issue in that State, ten in number, to enter into the new system. Eight of those banks became national banks, and

two of them refused to do so. The two old banks, as the Supreme Court of the United States held in that case, had a contract right with the State not to be taxed exceeding one per cent, and the State was powerless to increase the tax. The assessment of the plaintiff's shares of stock in the national bank was at the rate of nearly two per cent. It was contended that this was an unjust discrimination in favor of the two State banks, and the Supreme Court said that this national bank, or its shares, was not taxed for a greater sum than any other moneyed institutions of the State, and the State was powerless to change its contract with the two remaining banks of issue, it was not such a discrimination as would authorize the court to interfere. While there are exceeding sixty State banks, the Bank of Kentucky and its branches, the Northern Bank and its branches, the Bank of Louisville, and the Farmers' Bank of Kentucky and its branches, were at the passage of the Hewitt bill, and are now, regarded as the prominent banking institutions of the State, and, if with their capital and business rank, placed before the Supreme Court, with a tax of only one per cent, and the tax on the national banks placed at two per cent, the judgment of the Supreme Court upon such a state of fact doubtless would have been similar to the decision of this court in the case of the National Bank v. City of Paducah.

contract, is now insisting upon a legislative rescission of the contract, and placing the old banks at least in a position where they are to pay only fifty cents on shares of $100, and leaving the national banks subject to a greater rate of taxation. This repeal, if sustained, is, in effect, the creation of three or more new banks, with a rate of taxation much less than that imposed on the national banks, and making a discrimination in favor of the old banks and their branches that gives them a monopoly of the banking business of the State.

The old banks, with a capital of five millions, at the time the Hewitt bill passed, will be relegated to the condition they were in when the contract was made, as was held by the Supreme Court in the case of Clark v. Water Company, reported in 143 U. S., and that is an exemption from local burdens. with a tax of one-half of one per cent to the State. The national banks with a capital of ten millions when the Hewitt law was enacted, and now increased to twenty millions, will also be exempt from local burdens, because the State, in the exercise of the power now claimed, has abandoned the contract under which taxation was equal and uniform, and voluntarily made an unjust discrimination, when in its power to prevent it. Such consequences would be disastrous to both the State and the municipalities, the State losing the increased tax, and the municipalities, or the Legislature for them, without power to impose on national banks local burdens. The banks have all practically accepted the provisions of the Hewitt bill, and the legislation repealing or cancelling the contract, being in violation of both the State and Federal Constitutions, leaves the Hewitt bill, as to the banks, in full force, and they must be taxed under its provisions, until the contract terminates.

The case of Lionberger v. Rouse has no bearing on this question or contract. Here the State was not powerless to remedy the evil or prevent the discrimination complained of in the Missouri case. The Legislature devised a mode by which this discrimination could be removed, however great or even in significant the difference in taxation might have been The national banks, recognizing the fact that they could be taxed as other moneyed capital, and desiring uniformity of taxation, and not one rate for one bank and a different rate for another, surrendered their right or claim to be taxed as the old banks were taxed, and entered into this agreement by which a uniform system of taxation was adopted for all banks, such as the State desired. The claim of the old banks and the national banks as to the mode of taxing them was certainly not without founda-old Constitution, or to the municipalities under the tion, for the reason already given, and the proposition by the Legislature to settle these differences, and this acceptance, was a wise and just solution of the whole question.

The question presented by this legislative repeal is the opposite of the legislation in the Missouri bank case. In the one case there was no legislation making the discrimination, while in the case before us the State, after placing the banks, State

and national, on the same footing as to taxation, by the consent and agreement of all the parties to the

These moneyed institutions are now paying, including tax on surplus and realty, eighty cents, or about that sum, on each share of stock of $100, while the citizen taxpayer is paying only forty-two and a half cents; and, at last, it is a question whether this difference in the taxation is to be paid by the banks into the State treasury, as under the

new Constitution. In the absence of this contract it would go to discharge local burdens, but with this contract in full force, it must, be paid as to the amount and manner, as provided by the Hewitt bill of 1856, into the treasury of the State.

Judgment against the banks reversed, and remanded for further proceedings consistent with the opinion.

Judges Lewis, Paynter and Guffy dissenting. Judge Paynter delivered dissenting opinion.

DECISION IN THE PULLMAN CO. CASE.

ON

N June 1 Judge Baker handed down a decision in the case of Attorney-General Maloney v. The Pulman Palace Car Co., in which the plaintiff claimed that the company had violated its charter by conducting enterprises other than those for which the State granted it a charter, and that the charter should therefore be forfeited. The court sustained two of the charges against the company. One was that the company had exceeded its power in becoming the owners of twenty-three acres of land in the town of Pullman, which had been put to no use, and the other was that it violated its charter in becoming the owner of a part of the stock of the Pullman Iron and Steel Company.

The court holds that the company had the right to erect a ten-story office building in Chicago and rent the greater part of it to tenants; that it has the right to sell intoxicating liquors in its cars, and that in the purchase of land upon which the town of Pullman is built and the erection thereon of 2,200 dwelling-houses, to be rented to its employes, the company did not violate its charter, but only took upon itself powers which were implied in the grant of the Legislature. The company is also sustained in the erection of schools and a church in the town of Pullman, and the sale to the tenants of its houses of water and gas for the plants which the company owns.

The twenty-three acres of land which is unoccupied the company will be compelled to sell under the decree of the court, and it will be compelled to dispose of what stock it owns in the Pullman Iron and Steel Company. These two interests in which the company was defeated by the court involved only about $50,000.

If the Supreme Court sustains Judge Baker, the company will go on with its business undisturbed, and with its methods of business practically unchanged by the suit of the attorney-general.

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matter on appeal. Judge Pryor followed Justice Gaynor in denying a motion of Col. George H. Hart, for plaintiff, to raise the amount of damages originally prayed for, which, under the old law, was $5,000. The decision reversing him is written by Judge Bischoff, with Judges Daly and Bookstaver concurring. Judges Patterson, Dugro and McAdam in other cases have decided as the General Term of the Common Pleas has now decided. The court, after quoting the provision of the new Constitution that "the right of action * abrogated and the amount recoverable shall not be subject to any statutory limitation," says:

*

shall never be

"The clear import of this is to attach the inhibition of any limit to all future recoveries, and so comprehends recoveries under rights of action which had accrued at the time when the Constitution went into effect, as well as recoveries under rights of action which might thereafter accrue. That the language is sufficiently comprehensive to include a retrospective as well as a prospective effect affords no plausible ground for holding that the latter effect was intended to be exclusive of the former. To restrict, therefore the operation of the provision under review to recoveries under future rights of action requires distortion of the apparent and unambiguous sense of the language used, that sense in which the people must be presumed to have understood the provisions when it was adopted by popular vote. We are not permitted to consider any alleged and resultant hardship from such a provision or to question the wisdom of its adoption, our office being at all times to give effect to the supreme will of the people."

An effort was made to show by the debates on the provision at the Constitutional Convention that no such effect was intended, but the court says the debates are not pertinent, as it has only to consider what the people meant by voting the provision.

Abstracts of Recent Decisions.

ADMIRALTY -SHIPPING GENERAL AVERAGE.— The law of general average is part of the maritime law, and not of the municipal law, and applies to maritime adventures only. (Ralli v. Troop [U. S. S. C.], 15 Sup. Ct. 656.)

CARRIERS--DELIVERY TO BROKER.-Where goods were shipped over the lines of connecting railways to a consignee designated in the bill of lading, and on arrival at destination the receivers of the railway company which completed the transportation tendered delivery to that consignee, and he declined to receive the goods, the liability of the receivers as common carriers thereupon ceased, and they became liable as warehousemen only, and as such were chargeable with the duty of notifying the consignor

of the consignee's refusal to accept the goods, and with the further duty of holding the same subject to the order of the consignor. (American SugarRefining Co. v. McGhee [Ga.], 21 S. E. Rep. 383.) CARRIERS PASSENGER NEGLIGENCE.—A passenger alighting from a moving train at the direction of the conductor is not, as a matter of law, guilty of contributory negligence, where there was no appearance of danger either in the locality where he alighted, or the rate of speed of the train. (Watkins v. Raleigh & A. Air-Line R. Co. [N. Car.], 21 S. E. Rep. 409.)

CONFLICT OF LAWS-ASSIGNMENT FOR CREDITORS. -An assignment for the benefit of creditors, made in another State, under a statute providing that creditors shall receive no benefit under the assignment, nor any part of the debtor's estate, unless they first file a release of all claims other than such as may be paid under the assignment, will not be enforced in Iowa. (Franzen v. Hutchinson [Iowa], 62 N. W. Rep. 698.)

CORPORATIONS SEAL.It seems that, where a corporation is not required by law or by its by-laws to keep official minutes of the proceedings of the board of directors, neither such corporation, nor any one claiming under it, can go behind a resolution, certified by the secretary under the seal of the corporation, and show that such resolution was not, in fact, passed. (Prentiss Tool and Supply Co. v. Godchaux [U. S. C. C. of App.], 66 Fed. Rep. 234.)

EFFECT OF CERTIFICATE UNDER

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Where deceased was killed while engaged, with others, in an attack on defendant, with sticks and clubs, an instruction withdrawing the question of self-defense from the jury, on the ground that sticks and clubs are not deadly weapons, is erroneous. (Allen v. United States [U. S. S. C.], 15 S. C. Rep. 720.)

DOWER-DEED OF RIGHT OF WAY.-A widow has no dower in land which her husband, by an absolute deed, in which she did not join, conveyed for a right of way. (Chouteau v. Missouri Pac. Ry. Co. [Mo.], 30 S. W. Rep. 299.)

HUSBAND AND WIFE-PAYMENT OF WIFE'S MONEY. -A husband, acting as the general agent of his wife, cannot direct payments which he makes with her money to be applied to his debts. (Gleaton v. Tyler [S. Car.], 21 S. E. Rep. 333.)

INSURANCE POLICY-ISSUE BY AGENT.-An insurance policy issued by an agent of the company to a corporation of which he is a stockholder and officer is void. (Greenwood Ice and Coal Company v. Georgia Home Ins. Co. [Miss. ], 17 South. Rep. 83.)

SPECIFIC PERFORMANCE-PARTIES.-In an action to compel conveyance to complainants of certain property, one who has disposed of the legal title to all his interest in the property, and against whom no relief is demanded, should not be made a party to the action. (Burrill v. Garst [R. I.], 31 Atl. Rep. 436.)

VENDOR AND PURCHASER-STATUTE OF FRAUDS. When a purchaser of land goes into immediate possession and gives his vendor a note for the price, which contains a description of the land and all essential terms of the contract, the sale is taken out of the statute of frauds. (Reynolds v. Kirk [Ala.], 17 South. Rep. 95.)

WILL EVIDENCE.-Evidence that a testatrix was quite sick at the time her will was executed, and that after her recovery she stated that she could not remember anything that happened during her sickness was not sufficient to prove a want of testamentary capacity. (Henry v. Hall [Ala.], 17 South. Rep. 187.)

New Books and New Editions.

COMMENTARIES ON THE LAW OF CORPORATIONS. BY SEYMOUR D. THOMPSON, LL. D. IN SIX VOL

UMES.

Thie

scope of this work is so enormous that it is hardly possible to enter into the details of a publication of six large volumes, each one containing over one thousand pages. The first volume is divided into twenty-two chapters, the subjects of which are: Nature and Kinds of Corporations; Creation by Special Charters; Acceptance of Special Char

ters; Amendments of Charters; Charters Granted by the Courts; Organization Under General Laws; Reorganization; Names of Corporations; Consolidation; Promotors; Irregular and De Facto Corporations; Constitutional Restraints upon the Creation of Corporations and the Granting of Corporate Privileges; National Corporations; Place of Holding Corporate Meetings and of Doing Corporate Acts; Corporate Elections; A Motion of Officers; Expulsion of Members; By-Laws; Nature of Capital Stock and Shares in General; Who may become Shareholders in Corporations; The Contract of Subscription, and Alteration of Contract.

The second volume continues and commences with the twenty-third chapter, and goes through the forty-second, and includes chapters on Condi

tional Stock Subscriptions; Effect of Fraud on Stock Subscriptions; The Surrender of Shares and Release of Shareholders; Payment of shares; Assessments and Calls; Forfeiture of Shares for Nonpayment of Assessments; Actions by the Corporation against Shareholders for assessments; Evidence in such Actions; Defense to Actions for Assessments; Limitation of Actions against Stockholders; Powers of the Corporation in relation to its own Shares; Increasing and Decreasing Capital Stock; Dividends, Interest-Bearing, Preferred and Guaranteed Stock; Transfers of Shares; Bona Fide Purchasers of Shares; Pledges and Mortgages of Shares; Others Dealing in Shares; Execution and attachment against Shares; Taxation of Shares and

Dividends.

rectors to Strangers and Creditors of the Corporation Outside of Statute; Statutory Liability of Directors and Officers to Creditors; Contribution and Subrogation; Compensation of Directors and Officers.

These are the only three volumes which we have received, as we understand the remaining three are not yet complete, but will be published within a short time. The arrangement of the work into sections, with the number of pages at the foot of each page, appears to us to be an admirable plan, which will greatly increase the practical utility of the book. It will be with great pleasure that we shall review the remaining three volumes and give an opinion of the work in its entirety. Published by the Bancroft-Whitney Co., San Francisco, Cal.

BY

A MANUAL OF PUBLIC INTERNATIONAL LAW.
THOMAS ALFred Walker, M. A., LL. D.
This is a very interesting manual on a subject
which has received more than the usual attention

and consideration from the public during the past
year in view of the war between China and Japan, and
other international disputes which have occurred.
The author of this work is a fellow and lecturer at
Peterhouse, Cambridge, and the work was origi-
nally from the English press. The first chapter deals
with the definitions of International Law, and is
followed by chapters on International Law of Nor-
mal Relations, International Law of Abnormal Re-
lations, and Neutrality. Each of these parts is
subdivided into several chapters which makes it
most complete. The index of cases is very large
for a subject of this kind, with references to the
English and American reports. A very great ad-
vantage of the work is the marginal notes, while
the index of contents gives an additional value and
makes the work of practical use to students of this
subject and to lawyers. The work is written in an
easy, interesting and pleasant style, and really has
more of the qualities of a history than a legal text-
book. Published by MacMillan, 66 Fifth avenue,
New York city. Price, $2.50.

The third volume commences with chapter 43 and ends with chapter 85, and includes chapters on Nature and Extent of Liability of Stockholders to Creditors at Common Law; Liability in Equity on the Ground that Capital is a Trust Fund for Creditors; Liability before Organization Complete and Capital Paid in; Constitutional Provisions Creating and Abolishing Individual Liability; Construction of Statutes Making Stockholders Personally Liable for the Corporate Debts; Constitutional Questions Arising under such Statutes; Extraterritorial Force of such Statutes; Statutes Creating a Joint and Several Liability as Partners; Statutes Creating a Several Liability; For what Debts these Statutes make Stockholders Liable; Liability for Interest, Fees and Costs; Statutes making Stockholders Liable for Debts due for Labor, Provisions, etc.; To what class of Shareholders Liability Attaches; Present and Past Members; Status and Liability of Legal and Equitable Owners of Shares; Divestiture of Liability by Transferring Shares; Liability of Executors, Administrators, Heirs and Legatees; Conditions Precedents to the right to Proceed against Stockholders; Effect of Judgment against the Corporation; Remedies and Procedure; Parties to Proceedings by Creditors against Stockholders; Proceedings in Equity; Right of Action in Receiver, Assignee, etc.; Proceedings by Garnishment; Executions against Stockholders; Questions of Procedure; Defenses to Actions against Stockholders by or on behalf of Creditors; Limitation of Actions by or on behalf of Creditors; Set-off; Contribution among stockholders; Priorities among Creditors; This is the tenth volume of a series which will Directors; Right to Office; Directors and Officers 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.

AMERICAN RAILROAD AND CORPORATION REPorts,
VOLUME 10. EDITED AND ANNOTATED BY JOHN
LEWIS, AUTHOR OF "A TREATISE ON EMINENT
DOMAIN IN THE UNITED STATES."

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