in full force. This proviso preserved the operation and force of the Act of 1787, as to causes of action accruing in the intermediate period between the Act of 1787 and the Act of 1797. In this view of the matter, it is important to consider the entry of the defendant under the lease of the town, on the 16th of April, 1795. If that entry was adverse to the title of the plaintiffs, then the Act of 1787 began to run upon it from that period; for the cause of action of the plaintiffs then accrued to them by the ouster. sufficient reason for this. The words are "that, act, shall, for all such purposes, be and remain 505*] this act shall not extend," etc; not that the prior section of this act shall not extend, etc. It would be strange, indeed, if the Leg islature should interfere to prevent any improvements being paid for in cases of lands granted or sequestered for public, pious, or charitable uses; and yet should allow so short a period as three years to bar, forever, the right of the grantees for charity. There are good grounds why statutes of limitation should not be applied against grants for public, pious, and charitable uses, when they may well be applied against mere private rights. The public have It has been contended by the plaintiffs' couna deep and permanent interest in such chari- sel that the entry of Clarke under the lease in ties; and that interest far outweighs all consid-1795 was an entry for the plaintiffs, and in virerations of mere private convenience. The tue of their title, and not adverse to it. We do Legislature of Vermont has thought so; for we not think so. The town of Pawlet claimed the shall find, in its subsequent legislation, that it right to the property, not as tenants to, or subhas by a similar provision excepted from the ordinate to the right of the plaintiffs, but as operation of all the subsequent statutes of lim- grantees under the State. Their title, though itation, grants to such uses. There is, then, no derivative from, and consistent with the origi reason why the court should construe the words nal title of the plaintiffs, was a present claim of the ninth section as less extensive than their in exclusion of, and adverse to the plaintiffs. literal import. The case ought to be very They claimed the possession, as their own, in strong which would justify any court to de- fee-simple; and not as the possession of the part from the terms of an act, and especially plaintiffs. A vendee in fee derives his title to adopt a restrictive construction which is sub- from the vendor; but his title, though deriva versive of public rights, and justified by no tive, is adverse to *that of the vendor. [*507 known policy of the Legislature. We feel com- He enters and holds possession for himself, and pelled, therefore, to construe the words, that not for the vendor. Such was the doctrine of "this act shall not extend, etc.," as embracing this court in Blight's Lessee v. Rochester, the whole act, and carving an exception out of Wheat. Rep. 535, 547, 548. The lessee in the the operation of the eleventh section of it. present case did not enter to maintain the Let us then see how far any subsequent stat-right of the plaintiffs, but of the town. He was ute of limitations of the State applies to the not the lessee of the plaintiffs, and acquired no case. The next statute in the order of time is possession by their consent, or with their priv the Act of the 10th of March, 1787, which pro-ity. This entry, then, was adverse to any subvided as follows: "That no writ of right or other real action, no action of ejectment, etc.," shall "hereafter be sued, etc., for the recovery of any lands, etc., where the cause of action shall accrue after the passing of this act, but within fifteen years next after the cause of action shall accrue to the plaintiff or demandant, and those under whom he or they may claim. And that no person having a right of entry into any lands, etc., shall hereafter thereinto enter but within fifteen years after such right of entry shall accrue." This act contained no provision excepting grants for public, pious, or charitable uses from its operation. But it contained a 506*] *proviso that the act should not extend to bar any infant, person imprisoned, or beyond seas, without any of the United States. The act was prospective, and applied only where the cause of action accrued after the passing of it. This act was superseded and repealed by another Act of the 10th of November, 1797, which consitutes the present governing statute of limitations of the State. It contains, how ever, a proviso (sec. 13) that the act shall not be construed to extend to or affect any right or rights, action or actions, remedies, fines, forfeit ures, privileges, or advantages, accruing under any former act or acts, clause or clauses of acts falling within the construction of that act, in any manner whatsoever; but that all proceedings may be had, and advantages taken thereon, in the same manner as though that act had not been passed; and that the former act or acts of limitation, clause or clauses of acts, which are or were in force at the time of passing the sisting title in them, and with an intention to exclude it. It was, therefore, in every just sense, an entry adverse to, and not under the plaintiffs. The case then falls within the Act of 1787; and unless the plaintiffs are "beyond seas" within the proviso of that act, they would, upon the mere terms of that act, be barred. The facts stated upon the record do not enable us to say whether there is absolute proof to that effect. The plaintiffs are a foreign corporation, the members of which are averred to be aliens and British subjects; and the natural presumption is, that they are resident abroad. there cannot be a doubt that they are within the exception. If any of the corporators were resident in the United States, then a nicer question might arise as to the effect of the proviso: whether it applied to the corporation itself, or to the corporators, as representing the corporation. But this it is unnecessary to devise, and on this we give no opinion. If so, There is the less reason for it, because, by a subsequent Act, passed on the 11th of November, 1802 (long before the fifteen years under the Act of 1787 had run), it was provided "that nothing contained in any statute of limitations heretofore passed shall be construed to extend to any lands granted, given, sequestered or appropriated to any public, pious, or charitable uses; or to any lands belonging to this State. And any proper action of ejectment or other possessory action may be commenced, prosecuted, or defended for the recovery of any such land or lands, anything in any act or statute of limitations heretofore passed to the contrary notwithstanding." This act of course suspend- | tained a proviso that it should not extend to ed the Act of 1787 as to all cases within its purview. That the grants to the society for the propagation of the gospel were deemed to be grants for pious and charitable uses within it, 508*] is apparent *from the subsequent legislation of the State, as well as from the objects of the institution. In November, 1819, the Legislature passed an Act repealing this exception, so far as related to the rights "of lands in the State granted to The Society for the Propagation of the Gospel in Foreign Parts," thus plainly declaring that they were previous ly protected by it. This repeal cannot have any retrospective operation, as to let in the general operation of the statute of limitations in the intermediate period between 1802 and 1819; but must upon principle be held to revive the statute only in future. The present suit was brought in 1824, and the statute period of fifteen years had not then run against the plaintiffs. It is unnecessary to enter upon the consideration of the statute of limitations of 1797, which contains similar provisions as to this subject with that of 1787, and the exception of persons "beyond seas." Charitable and pious grants were not excepted from its operation: but that defect was cured by an Act passed on the 26th of October, 1801, in terms similar in substance to those of the Act of 1802, already referred to. The Act of 1797 applies in terms only to future causes of action, to causes of action accruing after the passing of the act; and limits the action to the period of fifteen years. If it had applied to the present case, it would have been open to the same reasoning upon the exceptions which have been already suggested in reference to the Act of 1787. Upon this second question our opinion is that a certificate ought to be sent to the Circuit Court that the plaintiffs are not barred by the three years' limitation, in the Act of the 27th of October, 1785, or by any other of the statutes of limitations of Vermont. The next point is, whether, under the laws of Vermont, the plaintiffs are entitled to recover mesne profits; and if so, for what length of time. any person or persons in possession of any lands granted for public or pious uses. This act continued in force until November, 1820, when an Act passed containing the same general provision as to the mesne profits; but the proviso in favor of lands granted to pious and charitable uses was silently dropped, and must be deemed to be repealed by implication. The question, then, is, whether the Act of 1820 does not take away the right to mesne profits in this case; for the state of facts does not show that any improvements have ever been made by the plaintiffs. The Treaty of Peace of 1783, the British Treaty of 1794, do not apply to the case. The right of action, if any, of the plaintiffs, did not accrue until the year 1795. The entry then made by the defendants was the first ouster; and at that time, in the action of ejectment, the plaintiffs could not have recovered any damages; but would have been driven to an action of trespass for mesne profits. The Legislature was competent to regulate the remedy by ejectment, and to limit its operation. It has so limited it. It has taken away by implication the right to recover mesne profits, as consequential upon the recovery in ejectment, and given the party his damages in the latter action. It has prescribed the restrictions upon which mesne profits shall be recovered, and these restrictions are obligatory *upon the citizens of the State. [*510 The plaintiffs have not, in this particular, any privileges by treaty beyond those of citizens. They take the benefit of the statute remedy to recover their right to the lands; and they must take the remedy with all the statute restrictions. Upon this last question our opinion is that it ought to be certified to the Circuit Court, that under the laws of Vermont the plaintiffs are not entitled to recover any mesne profits; unless so far as they can bring their case within the provisions of the third section of the Act of the 15th of November, 1820. This cause came on to be heard on the transcript of the record from the Circuit Court of Previous to the year 1797, the English action the United States for the District of Vermont, of ejectment was in use in Vermont, and the and on the points or questions on which the common law applicable to it, as well as the ac- judges of the said Circuit Court were opposed tion for mesne profits consequential upon re- in opinion, and which points or questions were covery in ejectment. By an Act passed on certified to this court for its opinion, in pursuthe 2d of March, 1797, the mode of proceeding ance of the act of Congress for that purpose 509*] was altered. The suit was required made and provided, and was argued by counto be brought directly between the real parties, sel; on consideration whereof, it is ordered by and against both landlords and tenants; and by this court that it be certified to the said Circuit that and a subsequent act, the judgment was Court on the points aforesaid, that this court made conclusive between the parties. It was is of opinion, 1. That the plaintiffs have shown further provided that in every such action, if that they have a right to hold lands, and esjudgment should be rendered for the plaintiff, pecially the lands in controversy. 2. That the he should recover as well his damages as the plaintiffs are not barred by the three years' seisin and possession of the premises. This limitation in the Act of the 27th of October, provision has ever since remained in full force, 1785, or by any other of the statutes of limitaand has superseded in such cases the action for tions of Vermont. And, 3. That under the laws mesne profits. In November, 1800, an Act was of Vermont, the plaintiffs are not entitled to passed declaring, "that in all actions of eject-recover any mesne profits, unless so far as they ment which now are, or hereafter may be brought, the plaintiff shall recover nothing for the mense profits, except upon such part of said improvements as were made by the plaintiff, or plaintiffs, or such person or persons under whom he, she, or they hold." The act con can bring their case within the provisions of the third section of the Act of Vermont of the 15th of November, 1820. All of which is accordingly hereby certified to the said Circuit Court of the United States for the District of Vermont. 511*] *JULIE SOULARD, Widow, et al., Appellants, V. THE UNITED STATES. JOHN T. SMITH, Appellant, V. THE UNITED STATES. Louisiana treaty-what is property in lands. In the treaty by which Louisiana was acquired, the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The United States, as a just nation, regard this stipulation as the avowal of a principle which would have been held equally sacred, though it had not been inserted in • the contract. The term "property," as applied to lands, comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract, those which are executory, as well as those which are executed. In this respect the relations of the inhabitants of Louisiana to their government is not changed. The new government takes the place of that which has passed away. In the full confidence that this is the sentiment by which the government of the United States is animated, and which has been infused into its legislation, the court have sought sedulously for that information which would enable it to discern the actual rights of the parties, and to distinguish between claims founded on legitimate contracts with those authorized to make them on the part of the crown, or its immediate agents, and such as were entirely dependent on the mere pleasure of those who might be in power such as might be rejected without giving just cause of imputation against the faith of those in office. The search has been unavailing. When Louisiana was transferred to the Unit ed States very few titles to lands, in the upper part of that province especially, were complete. The practice seems to have prevailed for the deputy-governor, sometimes the commandants of posts, to place individuals in possession of small tracts, and to protect that possession without further proceeding. Any intrusion upon this possession produced a complaint to the immediate supervising oflicer of the district or post, who inquired into it, and adjusted the dispute. The people seem to have remained contented with this condition. The colonial government, for some time previous to the cession, appears to have been without funds, and to have been in the habit of remunerating servIn the District Court of Missouri, the appel-ices with land instead of money. Many of lants, under the Act of Congress of the 26th of these concessions remained incomplete. May, 1824, instituted proceedings to try the validity of their claims to certain lands in Missouri, the titles to which they claimed to derive under the former Spanish government. THE The District Court gave a decree against the Mr. Chief Justice Marshall stated: The court have held the two cases of Soulard and John T. Smith against the United States under advisement. After bestowing upon them the most deliberate attention, we are unable to form a judgment which would be satisfactory to ourselves, or which ought to satisfy the public. In the treaty by which Louisiana was ac512*] quired, the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The United States, as a just nation, regard this stipulation as the avowal of a principle which would have been held equally sacred, though it had not been inserted in the contract. The term "property," as applied to lands, comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract-those which are executory as well as those which are executed. In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away. *If the duty of deciding on these vari- [*513 ous titles is transferred by the government to the judicial department, the laws and principles on which they depend ought to be supplied. The edicts of the preceding governments in relation to the ceded territory; the powers given to the governors, whether expressed in their commissions, or in special instruction; and the powers conferred on and exercised by the deputy-governors and other inferior officers who may have been authorized to allow the inception of title, are all material to a correct decision of the cases now before the court, and which may come before it. We cannot doubt the disposition of the government to furnish this information if it be attainable. We are far from being confident that it is attainable, but have determined to hold the cases which have been argued under advisement until the next term, in the hope that in the meantime we may be relieved from the necessity of deciding conjecturally on interests of great importance. The Chief Justice added: Since the determination which has been communicated had been agreed upon, the court has been informed that the Edict of August the 24th, 1770, is in the office of the Secretary of State. Had that edict been sufficient for the decision of the court, they would have disposed of the cases at this term. But other information is required, which has been referred to in the opinion. It is therefore considered proper to hold the cases under advisement. See S. C. 10 Pet. 100. 514*] *THE PROVIDENCE BANK, Plaintiffs in Error, V. ALPHEUS BILLINGS and Thomas man. G. Pitt leges which may exempt it from the burdens common to individuals do not flow necessarily from the charter, but must be expressed in it, or they do not exist. The power of legislation, and consequently of taxation, operates on all persons and property be longing to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all for the benefit of all. It resides in government as a part of itself, and need not be reserved where property of any discription. or the right to use it in any manner, is granted to Charter of bank by a State-contracts between In 1791 the Legislature of Rhode Island granted a charter of incorporation to certain individuals who had associated for the purpose of banking. They were incorporated by the name of the president, directors, and company of the Providence Bank, with the ordinary powers of such associations. In 1822 the Legislature passed an act imposing a tax on every bank in the State except The Bank of the United States. The Providence Bank refused the payment of the tax, alleging that the act which imposed it was repugnant to the Constitution of the United States, as it impaired the obligation of the contract created by the charter of incorporation. Held, that the Act of the Legislature of Rhode Island, imposing a tax, which, under the law, was assessed on the Providence Bank, does not impair the obligation of the contract created by the charter granted to the bank. It has been settled that a contract entered into between a State and an individual is as fully protected by the prohibitions contained in the teath section, first article of the Constitution, as a contract between two individuals; and it is not denied that a charter incorporating a bank is a contract. The power of taxing moneyed corporations has been frequently exercised, and has never before, so far as is known, been resisted. Its novelty, however, furnishes no conclusive argument against it. That the taxing power is of vital importance, that it is essential to the existence of government, are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a State may not relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist; but as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed in a case is which the deliberate purpose of the State to abandon it does not appear. The great object of an incorporation is to bestow the character and properties of individuality on a collected and changing body of men. Any privi NOTE.-Taxation of stock of, or shares in, corporation, does not impair obligation of contracts-taxation of shares in National banks, and of other corporations. The power of a sovereign government to impose taxes extends to all the persons and property belonging to the body politic, and has its foundation in the nature of society itself. It is granted by all for the benefit of all, and resides in the government as part of itself. Charles River Bridge v. Wanar Bridge, 11 Pet. 420, 546, 547. The taxing power of a State is one of its attributes of sovereignty. And where there has been no compact with the federal government, or cession of jurisdiction for the purposes specified in the Constitution, this power reaches all the property and business within the State, which are not properly denominated the means of the general gov ernment, and may be exercised at the discretion of the State. Nathan v. Louisiana, 8 How. 73. Property of every description, under the jurisdiction of a State, is subject to taxation, except the stock of the United States held by its citizens. Carroll v. Perry, 4 McLean, 25. A tax laid by a State on banks, on a valuation equal to the amount of their capital stock, is a tax on the property of the institution; and when that property consists of stocks of the United States, Bank Tax Case, 2 the law laying the tax is void. Wall. 200. The Act of June 3, 1864 (13 Stat. at L. 99), "to provide a national currency," etc., subjects the shares of the banking associations authorized by it and in the hands of shareholders, to taxation by the States, under certain limitations (set forth However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the Legislature. This vital power may be abused, but the Constitution of the United States was not intended to furnish the correction *of every abuse of [*515 power which may be committed to the State governments. The intrinsic wisdom and justice of the representative body and its relations with its constituents, furnish the only security where there is no express contract, against unjust and excessive taxation, as well as against unwise legislation generally. THIS HIS was a writ of error to the Supreme and the question which was presented for the The act thus construed is constitutional. Van An Act of a State Legislature imposing taxes on the shares of stock owned in national banking institutions, which omitted to provide, according to sec. 41 of the Act to provide for a national currency, that such taxes should not exceed the rate imposed on shares of banks organized under the State authority, is unconstitutional; it appearing that, under the State legislation, no tax was laid on the shares of State banks, although there was Van Allen v. a tax on the capital of such banks. The Assessors, 3 Wall. 573; Bradley v. The People, 4 Wall. 459. No greater proportion or percentage of tax on the valuation of shares held by an individual in a national bank can be assessed by a State than is assessed on other moneyed capital in the hands of 13 Stat. at L. 99; individual citizens of the State. People v. Commissioners, 4 Wall. 244. Where a State Legislature has, by contract relinquished its power of taxation with reference to the property of a banking corporation, a subsequent law which violates this contract by an imposition of taxes, is unconstitutional and void. Jefferson Branch Bank v. Skelly, 1 Black, 436; Franklin Branch Bank v. Ohio, 1 Black, 474. A provision of a State constitution authorizing 939 and that in pursuance of the provision of the same a warrant was issued, and the proceedings which were the subject of the action were done. To this plea the bank filed a general and a special demurrer. Among the causes of demurrer, the repugnancy of the acts of the General Assembly imposing the tax to the Constitution of the United States, inasmuch as they violate the contract set forth in the declaration (the act incorporating the bank), and, inasmuch as they authorize private property to be taken for public purpose, without providing any compensation, are distinctly stated. A judgment against them was submitted to by the bank in the Court of Common Pleas; and they appealed to the Supreme Judicial Court, where the judgment of the inferior court was confirmed by submission on the part of the 516*] bank, *and they prosecuted this writ of error, under the twenty-fifth section of the Judiciary Act of 1789. The Providence Bank was chartered by the Legislature of Rhode Island in October, 1791. The preamble of the act states: what kind or nature soever, and the same to sell, grant, devise, alien or dispose of, to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever; and also to make, have and use a common seal, and the same to break, alter and renew at their pleasure, and also to ordain, establish and put in execution such by-laws, ordinances and regulations, as shall seem necessary and convenient for the government of the said corporation, not being contrary to law, or the constitution of said bank, and generally to do and execute all and singular acts, matters and things, which to them it shall or may appertain to do. "And whereas, the stockholders, on the said 3d day of October, formed and adopted a constitution for said bank, in the words following, viz.: "Taught by the experience of Europe and America that well regulated banks are highly useful to society by promoting punctuality in the performance of contracts, increasing the medium of trade, facilitating the payment of "Whereas, the president and directors of a taxes, *preventing the exportation of [*517 bank established at Providence, on the 3d of specie, furnishing for it a safe deposit, and by October last, have petitioned this General As discounts rendering easy and expeditious the sembly for an act to incorporate the stock anticipations of funds on lawful interest, adholders in said bank; and whereas, well reg vancing at the same time the interest of the ulated banks have proved very beneficial in several of the United States, as well as in Europe: proprietors; we, the subscribers, desirous of therefore, be it enacted by the General Assem-promoting such an institution, do hereby engage bly, and by the authority thereof it is hereby to take the number of shares set against our enacted that the stockholders in said bank, names respectively, in a bank to be established their successors and assigns, shall be, and are in Providence, in the State of Rhode Island, on hereby created and made a corporation and the following plan," etc. body politic, by the name and style of the President, Directors and Company of the Providence Bank, and by that name shall be, and are hereby made able and capable in law, to have, purchase, receive, possess, enjoy, and retain to them and their successors, rents, tenements, hereditaments, goods, chattels, and effects of taxes to be imposed on banks, cannot be applied to a bank which received its charter before the adoption of such constitution, in such way as to impose on the bank a higher tax than is stipulated in the charter. Jefferson Branch Bank v. Skelly, 1 Black, 436. Where the charter of a bank, incorporated by a State, provides that no more than a specified amount of taxes shall be levied on its property, the Legislature of the State has not power subsequently to pass a law impairing the obligation of such contract. Ohio Life & Trust Co. v. DeBolt, 16 How. 416. The constitutional prohibition upon State laws impairing the obligation of contracts restricts the State from passing laws to impose taxes which will violate existing contracts. Murray v. Charleston, 6 Otto, 432. It does not forbid a subsequent Legislature from imposing a tax on a corporation, merely because a prior Legislature assumed to give the corporation an exemption which it had not power to confer in perpetuity. Railroad Companies v. Gaines, 7 Otto, 697. Shares of stock in a national bank, in New York State, should be assessed for taxation, at their true value, notwithstanding that may be more than their par value. People v. Commissioners of Taxes, 4 Otto, 415; see St. Louis Nat. Bank v. Papin, 4 Dill. 29. But should only be assessed at the same per centage, or in the same proportion as other property; and where they were assessed at their full value, while other property was only assessed at 30 or 40 per cent. of its true value, the bank was allowed to maintain an action to restrain collection of the tax beyond a fair share. Merchants' Bank The plan of the association is set forth in the act, and is made a part of the charter. It provides for the opening of subscriptions for the stock of the bank, to consist of six hundred and twenty-five shares of four hundred dollars each, making a capital of two hundred and fifty thousand dollars; and for the organization of Toledo v. Cumming, 17 Alb. L. J. 345; 5 Reporter, 680; City National Bank of Padnech v. Padnech, 5 Cent. L. J. 347. As to power and extent, of taxation of shares of National banks and corporations. See further Tappan v. Merchants Nat. Bank, 19 Wall. 490; National Bank v. Commonwealth, 9 Wall. 353; Waite v. Dowley, 4 Otto, 527; Adams v. Nashville, 5 Otto, 19; Hepburn v The School Districts, 23 Wall. 480; National Bank of Hamden v. Pierce, 18 Alb. L. J. 16; 5 Law & Eq. Reporter, 682; Collins v. Chicago, 4 Biss. 472; St. Louis Nat. Bank v. Papin, 4 Dill. 29; First National Bank v. Douglass County, 3 Dill. 330; 7 Wall. 262; Jackson v. Northern Central Railway, Chase Dec. 268; Morgan v. Louisiana, 3 Otto, 217; Union National Bank v. Chicago, 3 Biss. 82. The capital stock, franchises, and all the real and personal property of corporations are justly liable to taxation. Rule of valuation of capital stock and franchise. State Railroad Tax Cases, 2 Otto, 575; Huntington v. Central Pacific R. R. Co. 2 Sawyer, 503; St. Louis National Bank v. Papin, 22 Int. Rev. Rec. 343; Bailey v. McGuire, 22 Wall. 215; Olcott v. The Supervisors, 15 Wall. 678; Minot v. Phil. R. R. Co. 18 Wall. 206; 6 Wall. 594, 611, 632. An Act of the Legislature exempting property of a railroad from taxation is not a "contract" to exempt it, unless there be a consideration for the act. An agreement where there is no consideration is a nude act; the promise of a gratuity which may be kept changed or recalled, at pleasure. West Wisconsin R. R. Co. v. Supervisors, 3 Otto, 595. Taxation of capital stock-see note, 58 L.RA. 513. |