Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1885-03-04

" No OSol OospoA
Company VS.. Salem, 2 Gray. l; Binghamp-
ton Bridge case, 3 Wallace, 5l.)
In the Boston and Lowell Railroad vs.
Salem, Chief Justice Shaw held: "In con-
strung this act of incorporation we are to
bear in mind the time and circumstances
under which it W q made, but more eSpee-
tally to take into consideration every part
and clause of the act and deduee from 1t
the true meaning and intent of the parties.
The act, like every act and charter of the
same kind, is q contract between the Gov
eminent on the one hand and the under
takers accepting the act OF incorporation on
the other; and therefore what they both in
tended by the terms used, if We a ascer-
tain it, forms the true construction OF such
contract" To the same purpose are many
cases to be found in the books.
The charter to the Elk River Booming
Company constituted q contract upon the
part of the State with said company, grant
ing to it exclusive privileges in booming
said river within certain points, which con,
tract was accepted by the incorPorators, n
ever since they have enjoyed the franchise
granted BY said act. 1t is now attempted
to alter and amend the act by the act under
consideration, granting to other persons
rights and privileges upon said river within
the points covered BY the grant OF the Elk
River Company for booming purposes. 1t
is claimed that the Legislature may do this
under the reservation contained In the 10Th
section of the Act of 1869, which Is as tol!
lows:
The Legislature reserves the right to al
ter or amend this act at any time, in such
manner, however, that no injustice may be
done to the corporators or their creditors.
Does this reservation confer upon the Legls-
lature the power to change the contract 80
as to abridge the rights and privileges Of
the corporators? am of the opinion If
this reservation was unqualified it would
not give the Legislature the right to impair
the object of the grant or the rights vested
under it. Chief Justice Wait, in delivering
the opinion of the Court in the Sinking
Fund cases (99 L. s. page 72O) in interpra-
ting an Act of Congress with the reserve
ton, that Congress may at any time alter,
amend and repeal this act" held that Con-
gress not only retains but has given
special notice of its intention to
retain full AMI complete power to make
such alterations and amendments of the
charter as come within the just scope OF the
legislative power; that this power has q
limit no one can doubt. All agree that it
cannot be used to take away property al
ready acquired under the operation Of the
charter, or to deprive the corporation ofthe
fruits actually reduced to possession BY
contracts lawfully made; but as was said by
this court through Mr.. Justice Clifford, in
Miller vs.. the State Us Wall, 1881 it may
safely be affirmed that the reserved power
may be exercised, and to almost any
extent, to carry into effect the original pur-
pose of the grant, or to secure the due ad-
ministration OF its affairs, so as to protect
the rights OF stockholders and of creditors,
and for the proper distribution OF It's assets
Mr.. Justice Swsyne, in Shields VS.. Ohio,
says by way of limitation: The attestations
must be reasonable; they must be made in
good faith and be consistent with the object
and scope Of the act OF incorporation.
Sheer oppression and wrong cannot De in
ficted under the guise of amendment or
alteration" COS L. S. 324)
From these decisions it will readily be
seen that the right reserved has never been
held to take away from the incOrporatorS a
portion Of their franchise or to impair
their rights and privileges under it. The
Chief Justice in the ssme case says: Giving
effect TO the principles which have thus
been authoritatively stated, we think it safe
to say, that whatever rules Congress might
have prescribed in the original charter for
the government of the corporation in
the administration of its affairs, it retain
ed the power to establish by amendment
In so doing it cannot undo what has already
been done, and it cannot unmake contracts
that have already been made, but it may
provide for what shall be done in the future,
and may direct what preparation shall be
made for the due performance Of contracts
already entered into. Does the acts under
consideration conform to the principles
herein stated? Is it consistent with the o.
ject and scope of the act of Incorporation?
Is it 10 carry into effect the original purpose
of the grant, or to secure the due admins
tration of its affairs so as to protect the
rights of stockholders or creditors, and for
the proper disposition of its assets? 1t not
then it is clearly beyond the power of the
Legislature to amend the original charter.
What is it the act under consideration
seeks to accomplish? 1t is to authorize
any person or persons who may desire to
do so TO construct in said river or its tribu.
taries, from the mouth of Little Sandy creek,
in the county of Ksnawka, to the Webster
county line, what are known as pocket or
shear booms, for the purpose of securing
their " logs, masts, spars, ties, slaves and
other lumber
The part of the river covered by this
amendment is a part of the river included
in the original charter. In the original
charter the company had a right to erect
and maintain the same class of booms,
and to receive tolls for all logs or other
lumber therein enumerated passed therein.
The amendment, if it becomes a law, would
deprive the company of a valuable part o.
its franchise. 1t confers the powers on one
person, or any number Of persons associated
together, TO erect the boom therein provided
for, for the purpose of stopping and secur
ing their logs. What prevents a combina
ton Of persons from building such booms
for such purpose, and thereby render tn
franchise of the company Of no value? 1t
would seem to be possible.
Would not this act, if a law, do precisely
what Mr.. Justice Swayne says can not be
done2 Would it not infict upon the com
psny sheer oppression and wrong under the
guise Of amendment or alterations? In my
view of the ease this would be its effect.
1t was to avoid this result that the Legis,
lature in reserving the right to amend or
alter the charter, provided that in such
amendment or alteration mo injustice may
be done to the corporation or creditors"
l am of opinion the act violates the
spirit of the reservation. Manifest injustice
is done the company in taking away from it
q part Of its franchise.
The act, therefore, in attempting to de,
privea corporation of q part of its franchise,
impairs the obligation Of the contract en-,
tered into by the State with the company,
and is therefore repugnant to the Constitu.
ton of the United States.
For these reasons, | object to its becom-
ING a Law. j. B Jackson