in the Bank Tax Cases above cited, upon the question of contract, was not only in conflict with the settled adjudications of this court, but also inconsistent with sound principle, we will not adopt its conclusions. of thought involved in the contention. It was upon the distinction existing between the implication of the power to amend, alter, or repeal, and its express statement in a contract, that the case of New Jersey ▼. Yard, 95 Ú. S. 104 [24: 352], proceeded, and that case is therefore wholly inapposite to the controversy here presented. It was earnestly argued that conceding the general rule to be that a reserved power to repeal, alter, or amend enters into and forms a part of all subsequent legislative enact- The argument predicated on what is said ments, nevertheless this case should not be to be the peculiar language of the act of controlled thereby, first, because of peculiar 1856 is this: That act, whilst reserving the conditions which it is asserted existed at the right to amend or repeal "all charters and time the Hewitt law was enacted, and, sec- grants of or to corporations, or amendments ond, because of the terms of the act of 1856 thereof, and all other statutes," accompanied by which the power to repeal, alter, or amend this reserved right with the restriction that was reserved. The conditions relied upon it should not be exercised where "a contrary[650] and stated in argument as removing this intent be therein plainly expressed (in the case from the operation of the general prin- act creating the right), provided, that whilst ciple are as follows: When the Hewitt law privileges and franchises so granted may be was enacted there existed much uncertainty changed or repealed, no amendment or reas to the power of the state of Kentucky to peal shall impair other rights previously tax banks within its borders. There were vested." The bank, it is asserted, had under banks claiming to be only subject to limited its charter a right to be taxed only to a taxation because of charters enacted prior to limited amount; and this, it is claimed, conthe act of 1856. Again, there were other stituted a contract which was surrendered banks asserting a like right because of char- on the theory that the Hewitt law was irrevters adopted since 1856, but which, it was ocable, and if it were not so, then there was said, were not dominated by that act. In no surrender of the right under the charter, consequence of these pretensions on behalf of and therefore it now exists. This contenstate banks which were then undetermined, tion, however, but states in another form the the national banks, organized in the state, claims which we have already disposed of. were insisting that they were subject only The charter was conferred on the bank subto the rate of taxation to which the most sequent to the act of 1856, and the limit of favored state bank was liable, because it was taxation stated in the charter was therefore urged that to tax such banks at a higher rate subordinated to that act and subject to the [649] would be a discrimination in favor of these exercise of the power of amendment or rebanks and against the national banks, which peal. True it is in Franklin County Court was forbidden by the law of the United v. Deposit Bank of Frankfort (June, 1888, States. To add to this complexity, it is said, 87 Ky. 382) the court of appeals of Kenthe varying rate of local taxation was oper- tucky decided that a grant, after the act of ating inequality among banks, and driving 1856, of an exemption from taxation for a banking capital from the localities where the designated time, signified such a plain manitax was highest, thus producing a public festation of the will of the legislature that detriment. To assuage these difficulties and the grant should not be subject to alteration conflicts, to secure as to all banks, state and or amendment, that the right so conferred national, a uniform and higher rate of state was therefore not submitted to the parataxation than that existing as to other prop-mount power of repeal or amendment reerty, it is asserted that the Hewitt law tendered to all banks a contract giving freedom from local burdens if a higher state tax was voluntarily paid. This must have been contemplated to be irrevocable, for otherwise the very object of the law could not have been accomplished. Conceding, arguendo, to the fullest degree the situation to have been as described, the conclusion sought to be deduced from it is wholly unsound, since it disregards the fact that the contract proposed and which was actually entered into contained an express reservation of the right to repeal, alter, or amend. Indeed, the contention, when analyzed, amounts to this, that the plain letter of the contract should be disregarded upon the theory that the parties intended to make a different contract from that which they actually entered into. The distinction between the potentiality of a particular state of facts, for the purpose of preventing the implication of the reserved power to alter, amend, or repeal, and the impotency of such facts to overcome the express and unambiguous provisions of the contract, at once demonstrates the confusion served by the act of 1856. This decision, The assertion that wherever it is stated in should exist, is fallacious, since it overlooks | be taken away by the repealing act, therefore the consideration that the limit of time fixed the exemption from taxation could not be for the duration of the charter or grant, like withdrawn; but this is a mere form of reevery other provision therein, is qualified by stating the arguments already examined, and the reserved power to alter, amend, or re- is tantamount to the reassertion of the peal. It hence results that where in a char- proposition that the limited taxation estabter or grant enacted, when there is a general | lished by the Hewitt act, or the one constatute reserving the power to repeal, alter, ferred by the charter, could not be taken or amend, a time is stated, the granting act away at all. Referring to this subject, this must be read just as if it declared that the court in Greenwood v. Union Freight R. Comcharter or grant should exist for a desig-pany (ubi supra), said (p. 17 [26: 964]): nated time, unless sooner repealed, altered, "Such an act may be amended; that is, it or amended. Indeed, reduced to its final analy. may be changed by additions to its terms or sis, the argument that because in a grant by qualifications of the same. It may be alor charter a time is designated for its dura- tered by the same power, and it may be retion, it cannot, therefore, until the expira- pealed. What is it that may be repealed! tion of such time, be repealed, altered, or It is the act of incorporation. It is this amended, is equivalent to saying that the re-organic law on which the corporate existence served power cannot be exercised in any case of the company depends which may be reof contract. For, if every case of charter or pealed, so that it shall cease to be a law; grant where a time is fixed, either expressly or the legislature may adopt the milder or by necessary construction in the charter course of amending the law in matters which or grant, is taken out of the reach of the need amendment, or altering it when it needs reserved power, it would follow that only substantial change. All this may be done at those charters or grants which were deter- the pleasure of the legislature. That body minable at will would come under the con- need give no reason for its action in the mattrol of the power reserved. But to say this ter. The validity of such action does not simply amounts to declaring that the re- depend on the necessity for it or on the served power applies and can be enforced soundness of the reasons which prompted it." only in those cases where it would be entire- In considering what constituted vested[653] ly unnecessary or useless to do so. rights, the court clearly pointed out that rights of this character did not embrace mere privileges or franchises conferred by the granting act, and such rights obviously came within the power to repeal and amend, and were not within the category of those taken out of the reach of such power. In the Greenwood Case the reserved power was, by the general statute, authorized to be exercised "at the pleasure of the legis lature." But this qualification was decided in Hamilton Gas Light & Coke Company v. Hamilton City, 146 U. S. 271 [36: 969], to be no more comprehensive than the power which would be implied from a general law simply reserving the right to repeal, alter, or amend. The source of the reservation, by many of the states in general laws, of the power to amend, alter, or repeal, was fully reviewed in Greenwood v. Union Freight R. Company, 105 U. S. 13 [26: 961], where it was shown that such legislation had its origin in the purpose to provide for a case exactly like the one before us. Referring to the decision in Dartmouth College v. Woodward, 4 Wheat. 518 [4: 629], the court through Mr. Justice Miller, said (p. 20 [26: 965]): "It was, no doubt, with a view to suggest a method by which the state legislatures could retain in a large measure this important power" (the power to repeal or amend), "without violating the Federal Constitution, that Mr. Justice Story, in his concurring opinion in the Nor is there force in the claim that before [652]Dartmouth College *Case, suggested that the adoption of the charter in question the when the legislature was enacting a charter courts of the state of Kentucky had settled for a corporation, a provision in the statute the law to be that vested rights would inreserving to the legislature the right to clude a mere privilege conferred by the grantamend or repeal it must be held to be a part ing act, and which was therefore necessarily of the contract itself, and the subsequent ex- subjected to the power to repeal or amend if ercise of the right would be in accordance such power is to have any application at all. with the contract, and could not, therefore, This claim is based on what is assumed to impair its obligation. And he cites with ap- have been decided in Kentucky in Commisproval the observations we have already sioners of the Sinking Fund v. Green & Barquoted from the case of Wales v. Stetson, 2 ren River Navigation Company, 79 Ky. 73, Mass. 143 [3 Am. Dec. 39]. It would seem 75, 83. The case has not the import attrib that the states were not slow to avail them-uted to it. The scope of the question, in selves of this suggestion. As, then, that case adjudged, was considered and comthe limitation in the charter of the bank mented on by this court in Louisville Water was subject to repeal by the legislature, it Company v. Clark, supra, where it was said cannot be claimed that such exemption was (p. 16 [36:59]): vested in the bank, and was therefore subject to be reinstated if the Hewitt act was not an irrevocable contract, even if the correctness of the claim that this result would legally arise, if the charter had been an irrevocable contract, be arguendo conceded. It is urged that as the act of 1856 provides that other rights previously vested could not "But there is nothing in that case inconsistent with the views we have expressed. It was there decided that the legislature could not consistently with the Constitution, or with the above statute of 1856, take from the Green & Barren River Navigation Company, without making compensation therefor. the right it acquired under a contract facts, indicates at least that the question is not free from a reasonable doubt. Indeed the judiciary of Kentucky appears to be about equally divided upon the subject. with the state, concluded in 1868, to take, | opposite conclusion upon the same state of for a term of years, tolls from vessels navigating Green and Barren rivers, in consideration of its agreement, which had been fully performed, to maintain and keep in re pair, at its own expense, such line of navigation. The case before us presents no such features. As already indicated, in losing an exemption from taxation the water company [654]*1egained its rights to make such charges for water, furnished for fire protection, as it could rightfully have done before the act of 1882 was passed, and whilst its property was subject to taxation." The dominant question in the case is whether the written acceptance by the bank of the proposition contained in the act of 1886, known as the Hewitt act, constituted a contract which neither the legislature nor the bank could repudiate at pleasure. As stated in the opinion of the court, the bank was chartered in 1884, with a provision that its life should continue for thirty years, and that Finally, it is said that as at the time the a payment of fifty cents on each one hundred Hewitt act was passed the rate of state tax-dollars of stock should "be in full of all tax ation was lower than the sum of taxation and bonus thereon of every kind." This fixed by that act on the banks, giving their charter fell under the provisions of the prior assent to it, therefore this increased sum act of 1856, declaring that all such charters over and above the amount of state taxes should be subject to amendment or repeal at paid by other taxpayers, to the state, con- the will of the legislature. There seems, howstituted a consideration received by the state, ever, to have been some dispute as to whether,. and created a vested right of such a nature under the power to amend, it was within the that the state could not repeal the Hewitt competency of the legislature to increase this act without providing for the refunding of tax during the life of the charter, without a the sum paid the state in excess of the state violation of the Fourteenth Amendment to taxes paid by other taxpayers. But this dis- the Federal Constitution. To settle this regards the patent fact that whilst the question beyond peradventure, the legislaamount of the state taxes, paid by the bank ture, in 1886, inaugurated a new policy, and under the Hewitt act, was larger than the in the Hewitt act made a distinct proposition taxes paid by other taxpayers to the state, that, if the banks and corporations interested the bank was by the Hewitt act relieved from with the consent of the majority in interest all obligation to pay county and municipal of their stockholders, at a regular meeting taxes. As the bank had at the time of the thereof, should give their consent to the levyHewitt act no contract limiting the taxing ing of a tax of seventy-five cents on each power of the state which could not have been share equal to one hundred dollars, and agree repealed, it therefore could have been sub- to pay the same as therein provided, and jected by the state to the same rate of county would agree to waive and release all right[656] and municipal taxes resting upon other tax- under the act of Congress, or under their payers. It is not asserted that if this legis- charters, to a different mode or smaller rate lative power had been exerted and the bank of taxation, and should evidence such consent been compelled to pay the same amount of by writing under the seal of the bank deliv taxation, for all governmental purposes, that ered to the governor of the commonwealth, other property owners were obliged to pay "such bank and its shares of stock should be that it would not have contributed more than exempt from all other taxation whatever, it was called upon to do under the Hewitt so long as said tax shall be paid during the act. The claim therefore amounts to this: corporate existence of such bank." There was That because the Hewitt act relieved the a further provision that, in case of refusal to bank from a part of the burden of taxation enter into this compact, the bank should be which rested upon the other taxpayers of assessed as directed by a previous section, the state, and this relief from burden was and such state, county, and municipal taxes purely the result of the voluntary act of the imposed as were imposed on the assessed taxlawmaker, that the power to remove the priv-able property in the hands of individuals. ilege cannot be exerted without refunding to the bank a portion of the lesser burden which it has paid. Thus to analyze the proposition is to answer it. Our conclusion being that there was no irrevocable contract protecting the bank [655] from taxation, and therefore that the taxing law of Kentucky did not violate the contract clause of the Constitution of the United States, it follows that the decree below must be and it is affirmed. Mr. Justice Brown dissenting: It is true that this act was made expressly subject to the prior act of 1856, declaring that all charters and grants to corporations should be subject to amendment or repeal at the will of the legislature; but this very act limited the power to repeal and amend to cases where a "contrary intent" was not "therein plainly expressed." In other words, that while such charters or grants were generally subject to amendment or repeal, if language were used by the legislature indicating clearly an intention that the privileges and franchises therein granted should not be subject to amendment or repeal, it was perfectly competent to do so, and the stipulation was binding. There was a further provision that no amendment or repeal should "impair other rights previously vested." How, then, could such intent to limit its own powers be manifested by the legislature? It will prob 656-659 The cases cited in the opinion of the court ably be conceded that, if the grant or charter | thority in attempting to exact the taxes in contained a clause to the effect that any par- question. ticular privilege therein granted should not be subject to amendment or repeal, it would be sufficient; but it seems to me equally clear that if it contained other language plainly evincing an intent that a particular clause should be irrepealable for a certain length of time; or, if it contained a proposition from which the legislature could not withdraw without a breach of faith toward those who had accepted its terms, it could not be intended that such contract, if accepted, should be subject to repudiation. Conceding to its fullest extent the doctrine of the Dartmouth [657]College Case, that the charter of a corporation is a contract, it follows that so far as it is a charter it is, under the act of 1856, subject to amendment or repeal; but so far as the legislature departs from the main object of the charter of granting privileges and franchises, and invites its corporations to enter into written contracts with it, requires such contracts to be executed in an unusual form, and to receive the consent, not only of the directors, but of a majority of its stockholders, and, further, that they be made under seal and delivered to the governor of the commonan intent as wealth, that then it evinces clearly as language can express it that such contract shall be binding, and that, in respect thereto, it yields up its right to amendment or repeal. New Jersey v. Yard, 95 U. S. 104 [24: 352]. To hold that a contract thus solemnly entered into may be repudiated at the next session of the legislature is practic-itation or provision to the contrary." It was ally to say that the legislature may set a trap for its corporations, and that after it has enticed them into it by the offer of more favorable terms than they otherwise could obtain, may repudiate its own obligations, without restoring to the corporations what it had previously induced them to give up. In Maine C. Railroad Company v. Maine, 96 U. S. 499 [24: 836], there was a similar general law, passed in 1831, declaring any act of incorporation liable to be amended, altered, or repealed at the pleasure of the legislature, unless there was "an express lim held that an act of the legislature passed in 1856, authorizing corporations to consolidate and form a new corporation, was an act of incorporation of a new company, and, there being in this act no limitation upon the power of amendinent, alteration, and repeal, the state retained the power to alter it in all particulars, constituting the grant of corpo The difficulty with the position of the court new company, and that a limitation upon the The case of the Louisville Water Company v. Clark, 143 U. S. 1 [36: 55], arose under the same act of Kentucky of 1856. In that upon the water company by an act passed in case, an immunity from taxation, conferred 1882, was withdrawn by a subsequent act passed in 1886, and it was held that as the act of 1882 contained no clause that "plainly expressed" an intention not to exercise the power reserved by the statute of 1856 to amend or repeal, at the will of the legisla ture, all charters or grants to corporations, the act was subject to that general statute for the very reason that there was no "contrary intent" "plainly expressed." The opinion harmonizes completely with the position here assumed, and contains a clear inference 173 U. S. that where a subsequent act plainly evinces an intention on the part of the legislature The recent case of Covington v. Kentucky, 173 U. S. 231 [ante, 679] is of the same tenor. An act passed in 1886, authorizing the city of Covington to build a system of waterworks, contained a provision that they should "remain forever exempt from state, county, and city tax." This was held to be subject to the act of 1856, providing for the ainendment or repeal at the will of the legislature, unless a contrary intent be therein plainly expressed. It was very properly held that there was nothing in the act of 1886 plainly expressing an intent that the provision exempting the property from taxation was not subject to repeal; but the whole theory of this dissent is embodied in the proposition that there was in the Hewitt act a plainly expressed intent that it should not be amended or repealed to the prejudice of banks accepting its terms. There was a plain intimation in that opinion that if the act of 1886 had contained evidence of such intent it would have been held to repeal the [660]*act of 1856 to that extent. "Before a statute," said the court,-"particularly one relating to taxation,-should be held to be irrepealable, or not subject to amendment, an intent not to repeal or amend must be so directly and unmistakably expressed as to leave no room for doubt; otherwise the intent is not plainly expressed. It is not so expressed when the existence of the intent arises only from inference or conjecture." Such intent was found by this court in it was offered to the acceptance of the company, the right on the part of the legislature to alter or amend it at pleasure? If the state intended to reserve this right, what ne cessity for asking the company to accept in such formal manner the terms of a contract which the state could at any time make to suit itself?" I find it difficult to see how that case and the one under consideration can stand together. So far as the court of appeals of Kentucky had spoken *upon this question, prior to the[661] decision which is here affirmed, it was uniformly in favor of the position taken in this dissent. In Franklin County Court v. Deposit Bank of Frankfort, 87 Ky. 370, it was held that an act which continued the life of a charter to a period beyond the time fixed for its expiration, and reserved the corporate organization, privileges, powers, duties, and rights, was an extension of an old charter, and not the grant of a new one; that an act passed in 1858, "plainly expressed" an intention that the act of 1856 should not apply to it, and that such intent was evinced by the provision that the appellee bank should establish a branch at Columbus; "that the amount of its circulation should not be greater than the amount of its capital stock actually paid in; that it should, in addition to the fifty cents per share of its capital stock, pay annually fifty cents upon each one hundred dollars of its contingent fund; that it should be subject to all the limitations, conditions, and duties imposed upon it by the act of incorporation; that it should formally accept the terms of extension." I desire only to add that in Commonwealth v. Farmers' Bank of Kentucky, 97 Ky. 590, it was held, by the same majority of the court which subsequently overruled it, that there existed in the Hewitt act "every element of a contract between the state and the banks and, with such a consideration as will uphold it, no reasonable doubt can be entertained that such was the purpose of the parties to it." "We are satisfied," said the court, "after a carefu! consideration of this question, that the parties making the contract never contemplated or intended that the act of 1856 should apply to this contract after its acceptance by the banks, and that such an acceptance was necessary to make the contract complete between the parties." The argument is a powerful demonstration of the existence of an irrevocable contract; but the court of appeals subsequently overruled this decision, and this court has af firmed its action and in addition thereto has pronounced an cpinion seemingly so inconsistent with New Jersey v. Yard as to practically amount to an overruling of that case. These cases, however, are but a reaffirmance of a *principle which the same court had pre-[662] viously laid down in Commissioners of Sinking Fund v. Green & Barren River Navigaticn Co. 79 Ky. 73, and Commonwealth v. Owensboro & N. R. Co. 95 Ky. 60, that a distinct contract contained in a charter was not subject to the act of 1856. Indeed, I do not understand upon what other theory a positive acceptance of the taxation imposed by the Hewitt act was required of these banks. F4 849 |