assault, or a murder,-and subject the same, whether the offense for which an officer or person to a punishment, under the state soldier is being tried is, in every substanlaws, for a misdemeanor or felony. That tial respect, the same offense for which he either or both may (if they see fit) punish had been previously tried. We will not such an offender, cannot be doubted. Yet it therefore attempt to formulate any rule by cannot be truly averred that the offender which every conceivable case must be has been twice punished for the same of solved. But, passing by all other questions fense; but only that by one act he has com- discussed by counsel, or which might arise mitted two offenses, for each of which he on the record, and restricting our decision is justly punishable. He could not plead to the above question of double jeopardy, the punishment by one in bar to a convic- we adjudge that, consistently with the tion by the other; consequently, this court above act of 1902, and for the reasons stathas decided, in the case of Fox v. Ohio, 5 ed, the plaintiff in error, a soldier in the How. 432, 12 L. ed. 222, that a state may Army, having been acquitted of the crime punish the offense of uttering or passing of homicide, alleged to have been committed false coin, as a cheat or fraud practised on by him in the Philippines, by a military its citizens; and, in the case of the United court of competent jurisdiction, proceeding States v. Marigold, supra, that Congress, in under the authority of the United States, the proper exercise of its authority, may could not be subsequently tried for the punish the same act as an offense against same offense in a civil court exercising authe United States." thority in that territory. This is sufficient It is clear that the cases above cited are to dispose of the present case. not in point here. The government of the The judgment must be reversed, and the United States and the governments of the case remanded with directions to the Suseveral states, in the exercise of their re- preme Court of the Philippines to order the spective powers, move on different lines. The complaint or information in the Court of government of the United States has no First Instance to be dismissed and the plainpower, except as expressly or by necessary tiff in error discharged from custody. implication has been granted to it, while It is so ordered. the several states may exert such powers as are not inconsistent with the Constitution of the United States nor with a republican form of government, and which MEYER S. BERNHEIMER and Lorin S. have not been surrendered by them to the Bernheimer, Surviving Executors of the Last Will and Testament of Simon Berngeneral government. An offense against heimer, Deceased, Plffs. in Err., the United States can only be punished un V. der its authority and in the tribunals cre- THEODORE R. CONVERSE, Receiver of the ated by its laws; whereas, an offense Minnesota Thresher Manufacturing Comagainst a state can be punished only by its pany, Deft. in Err. (No. 278.) authority and in its tribunals. The same act, as held in Moore's Case, may constitute MAX DREY, Charles D. Bernheimer, and two offenses, one against the United States Meyer A. Bernheimer, Executors of the and the other against a state. But these a Last Will and Testament of Isaac Bernthings cannot be predicated of the relations heimer, Deceased, Plffs. in Err., between the United States and the Philip- THEODORE R. CONVERSE, Receiver of pines. The government of a state does not the Minnesota Thresher Manufacturing derive its powers from the United States, Company, Deft. in Err. (No. 279.) while the government of the Philippines owes its existence wholly to the United Corporations-stockholder's liability. States, and its judicial tribunals exert all 1. A domestic corporation formed for their powers by authority of the United the purchase of the capital stock, evidences States. The jurisdiction and authority of of indebtedness, and assets of another dothe United States over that territory and mestic corporation, and for the further purits inhabitants, for all legitimate purposes ments and machinery, is one organized for pose of manufacturing and selling impleof government, is paramount. So that the So that the a purpose other than that of carrying on cases holding that the same acts committed any kind of manufacturing or mechanical in a state of the Union may constitute an business, and is therefore not within the offense against the United States and also exception as to the liability of stockholda distinct offense against the state do not ers made by Minn. Const. art. 10, $ 3, in faapply here, where the two tribunals that vor of corporations of that kind. tried the accused exert all their powers un Constitutional law-impairing contract obder and by authority of the same govern ligations—change of remedy. 2. The contractual obligations arising ment,--that of the United States. out of Minn. Gen. Stat. 1894, chap. 76, It may be difficult at times to determine 'adopted to enforce the liability of stock holders prescribed by Minn. Const. art. 10, The accions were brought (January 28, The record discloses that the Minnesota the assessment. Thresher Manufacturing Company was inConstitutional law--due process of lawenforcing stockholder's liability-service corporated under the laws of the state of Minnesota on the 5th of December, 1884, of process. 3. Due process of law is not denied a the objects for which the corporation was stockholder in a domestic corporation by formed being the purchase of the capital Minn. Gen. Laws 1899, chap. 272, enacted stock, evidences of indebtedness, and assets to make more effectual the constitutional of the Northwestern Manufacturing & Car liability of stockholders for the debts of Company, also a corporation under the laws the corporation, because stockholders need of the state of Minnesota, and for the furnot necessarily be served with process in ther purpose of manufacturing and selling the action in which the assessment is made. steam engines, farm implements, machinery, Receivers—suits in foreign jurisdiction. 4. A chancery receiver of a domestic etc., and the manufacture and sale of arti corporation upon whom, as a quasi assignee cles, implements, and machinery of which and representative of the creditors, is con- wood and iron form the principal parts. ferred by Minn. Gen. Laws 1899, chap. 272, The Northwestern Manufacturing & Car the authority to maintain an action to en- Company was in the hands of a receiver, force the liability of stockholders, may sue carrying on its business under the orders in a foreign jurisdiction. of a court, and, on October 27, 1887, the Limitation of actions—enforcing stockhold- property and plant of that company, includer's liability in foreign jurisdiction. 5. The limitation of the right to bring and assets were sold under decree and pur ing all its bills receivable, farmers' notes, an action against a stockholder for a debt of the corporation to two years after he chased by the Minnesota Thresher Manuhas ceased to be a stockholder, which is facturing Company. The last-named commade by N. Y. Laws 1892, chap. 688, $ 55, pany continued in business until December, is not applicable to a suit to enforce the 1900. On December 14 of that year the liability of a stockholder in a foreign cor- property and business of the thresher comporation. pany were placed in the hands of a receiver Limitation of actions—enforcing stockhold- by the order of the circuit court of the er's liability in foreign jurisdiction. United States for the district of Minnesota, 6. A cause of action to enforce the lia- in a suit for the foreclosure of a mortgage bility of a stockholder under the Minnesota Constitution and laws does not accrue so as upon its property, and this receiver carried to start the running of the six years' limi- on the business until the mortgaged propertation prescribed by N. Y. Code Civ. Proc. ty was sold under a decree of foreclosure on $ 382, until the receiver of the corporation May 25, 1901. can sue upon the assessment after the On May 6, 1901, the Merchants' National stockholder" has failed to pay as required Bank of St. Paul obtained a judgment in by an order of court. the district court of Ramsey county, Minne sota, against the thresher company, and ex[Nos. 278, 279.] ecutions thereon having been returned unArgued April 25, 26, 1907. Decided May 27, satisfied, the judgment creditor brought suit 1907. against the thresher company for the appointment of a receiver and the enforcement a TWO WO WRITS of error to the Circuit Court of the individual liability of its stockhold of the United States for the Southern ers in the district court of Washington District of New York to review judgments county, Minnesota. In that suit Theodore enforcing the liability of stockholders in a R. Converse, defendant in error in these foreign corporation. Affirmed. cases, was appointed receiver. On the peti tion of the receiver, for the purpose of proStatement by Mr. Justice Day: viding funds for the payment of the ex. These are writs of error to the circuit penses of the receivership in the enforce. court of the United States for the southernment of the stock liability and payment of district of New York, indebtedness, an order was made, Decem . ber 22, 1902, reciting, among other things, I been acquired before the passage of the that copies of an order of April 16, 1902 statute of 1899. General Laws of Minne(not in the record), had been published, sota, chap. 272, being “An Act to Provide mailed, and served as therein required, and for the Better Enforcement of the Liability that due notice of the hearing had been of Stockholders of Corporations." given to the defendant company and to each A former statute had been for some years stockholder of record, as directed by the in force in Minnesota and was the statute order, and, on a hearing duly had, an order law of the state when the stock which conof assessment of 36 per cent of the par cerns the controversy here was acquired by value of each share of the capital stock of the Bernheimers. This statute was before the thresher company, to wit, $18 per share, this court in the cases of Hale v. Allinson, was assessed against each and every share 188 U. S. 56, 47 L. ed. 330, 23 Sup. Ct. Rep. of the capital stock, and against each and 244, and Finney v. Guy, 189 U. S. 335, 47 L. every person, corporation, or party liable ed. 839, 23 Sup. Ct. Rep. 558. It was the as such stockholder, and each such person, act of 1894, General Statutes of Minnesota corporation, or party was directed to pay of that year, chap. 76, p. 1595, and is set to the said receiver, at his office in the city forth in full in the margin (188 U. S. p. , of Stillwater, Minnesota, within thirty 60, 47 L. ed. p. 385, 23 Sup. Ct. Rep. p. days after the date of the order, the said 245). sum of $18 a share; and, further, upon Under that act it was held, in a series failure to pay said sums, the receiver was of decisions in the state of Minnesota, which authorized to prosecute actions or proceed were reviewed in Hale v. Allinson, that an ings against the persons liable in any court action could only be maintained under the having jurisdiction in the state of Minne- laws of Minnesota when brought Ly a credsota or elsewhere. On appeal to the su-itor or creditors for the benefit of all credpreme court of the state of Minnesota this itors of the corporation, and the recovery order was affirmed. 90 Minn. 144, 95 N. W. was had for the purpose of making good 767. Subsequently, as stated, these actions any deficiency in the corporate assets for were brought and judgment rendered the payment of corporate debts; that the against the executors of the Bernheimers. receiver could not maintain such an action outside of the jurisdiction of the court apMr. Laurence Arnold Tanzer for plaintiffs pointing him, and that the only remedy in error. was, as stated, in a creditor's action, bring. Messrs. William G. Wilson and C. A. Seving in all the stockholders, for the realizaerance for defendant in error. tion of a fund to be proportionately disMr. Justice Day delivered the opinion of tributed among the creditors in one suit. the court: The principal contentions in these cases Before entering upon a discussion of the are that the act of 1899, above referred to, objections urged against the validity of the works such a change in the contract thereassessment upon stockholders which is the tofore existing by virtue of the acquisition subject of controversy here, we may say of stock in a Minnesota corporation as to we find no reason to.disagree with the judg. impair the obligation thereof, and, in ways ment of the supreme court of Minnesota to be hereafter noticed, undertakes to hold in holding the Minnesota Thresher Manu. a stockholder by judgment rendered without facturing Company to be a corporation or due process of law. ganized for other than the purpose of carry The act of 1899 was before this court in ing on any kind of manufacturing or me the case of the First Nat. Bank v. Converse, chanical business, and therefore not within 200 U. S. 425, 50 L. ed. 537, 26 Sup. Ct. Rep. the exception as to stockholders' liability 306, and its principal parts are set forth in in favor of corporations of that kind. the margin of the report of that case on State ex rel. Clapp v. Minnesota Thresher page 428, L. ed. page 538, Sup. Ct. Rep. page Mfg. Co. 40 Minn. 215, 3 L.R.A. 510, 41 N. 307. The act, for our purposes, may be W. 1020; Merchants' Nat. Bank v. Minne- summarized as follows: sota Thresher Mfg. Co. 90 Minn. 144, 95 N. "Sec. 1. Whenever any corporation creatW. 767. ed or existing by or under the laws of the The questions made in these cases involve state of Minnesota, whose stockholders or the right to recover upon a stockholder's any of them are liable to it or to its credliability in a Federal court in a state other itors upon or on account of any than the one in which the original proceed liability for . the stock or shares at ings in liquidation were had, and under any time held or owned by such stockholdwhose laws the corporation was formed, ers, respectively, whether under or by virand wherein it carried on business, against tue of the Constitution and laws of said stockholders in such corporate companies as state of Minnesota, or any statute of said the Thresher Company, where the stock had' state or otherwise, has heretofore made or . shall hereafter make an assignment for the levied shall be conclusive upon and against benefit of its creditors under the insolvency all parties liable upon or on account of any laws of this state; or whenever a receiver shares of said stock of such corporation, for any such corporation has heretofore whether appearing or having notice thereof been or shall hereafter be appointed by any or not, as to all matters relating to the district court of this state, whether under amount of and the necessity for said asor pursuant to . any other statute sessment, which provision shall also apply of this state, or under the general equity to any subsequent assessment levied by orpowers and practice of such court, the dis- der of the court. trict court appointing such receiver or hav- Section 6 makes it the duty of the asing jurisdiction of the matter of said as-signee or receiver, upon failure to pay as resignment may proceed as in this act provid- quired by the order, to institute and mained.” tain an action against any party liable upon Section 2 provides that upon the petition or on account of any such shares of stock, of the assignee or receiver, or any creditor and that actions may be maintained against of the corporation who has filed his claim, each stockholder in Minnesota or in any the district court shall appoint a time for other state or country where such stockhearing not less than thirty days nor more holder or any property subject to attachthan sixty days from the time of filing said ment, garnishment, or other process may be petition, and direct notice of the hearing to found, and provides that if the assignee or be given by publication or otherwise, in receiver shall believe any such stockholder the discretion of the court; but if the pe- to be insolvent, or that the expense of tition be filed by a creditor, other than the prosecuting such action will work to the assignee or receiver, the court shall direct disadvantage of the estate, he shall not be notice of the hearing to be personally served required to prosecute the same, unless speon the assignee or receiver. cifically directed so to do by the court. Section 3 provides that the court shall Section 7 provides for further assessconsider the proofs offered by the assigneements in case the first proves inadequate. or receiver, or by any creditor or stockhold- Section 8 extends the provisions of the er who may appear in person or by attor- act to such subsequent assessments. ney as to the probable indebtedness of the Section 9 provides where two or more ascorporation and the expenses of the assign- sessments are levied or directed, the asment or receivership and the probable signee or receiver may join the causes of amount of assets available for the payment action against any stockholder on two or of such indebtedness and expenses; also as more such assessments. to what parties are or may be liable as Section 10 provides that if the assignee stockholders, and the nature and extent of or receiver fails to institute or prosecute such liability. And if it shall appear to the action, the creditors may petition the the satisfaction of such court that the ordi- court to compel him to proceed under cernary assets, or such amount as may be real-tain conditions. ized therefrom in a reasonable time, will Section 11 provides for the return of the not be sufficient to pay the expenses of surplus, if any remain, in the hands of the such assignment or receivership and the assignee or receiver after paying the exindebtedness, and it is necessary to resort penses of the assignmen penses of the assignment or receivership to the liability of stockholders, the court and the claims of the creditors, and that shall, by order, direct and levy a ratable stockholders who have paid assessments assessment upon all parties liable as stock shall, in addition to the remedy provided in holders, or upon or on account of any stock the statute, be entitled to enforce contribuor shares of such corporation for such tions from stockholders who have not paid amount as the court, in its discretion, may assessments. deem proper, taking into account the prob- Section 12 provides for additional judgable solvency or insolvency of stockholders, ments in case of the inadequacy of former and the probable expenses of collecting the assessments. assessment, and shall direct the payment Section 13 excludes certain stockholders of the amount so assessed to the assignee in pending actions from the operation of or receiver within such time as the court the act. may specify in said order. This statute came before the supreme Section 4 provides for an order to the as-court of Minnesota in Straw & E. Mfg. Co. v. signee or receiver to proceed to collect the L. D. Kilbourne Boot & Shoe Co. 80 Minn. amount so assessed, unless it be paid with 125, 83 N. W. 36. In that case it was given in the time specified in the order, and, in full consideration and its constitutionality default of payment, the receiver is to bring sustained, and it was held that while the suit. assessments upon the outstanding shares of Section 5 provides that the assessment | stock in an amount necessary to meet the deficiency in the assets of the corporation In pursuance of that power the legislawas conclusive upon the stockholders as ture passed the act of 1894, which remained members of the corporation, yet the statute, in force until the passage of the act of to deprive a person, when sued for the The fundamental contention upon which a , amount assessed on shares of stock under the the argument of the plaintiffs in error visions of the act, from showing that he against the constitutionality of this subse. was not a stockholder, or that he was not quent act rests is that the statute created the holder of so large an amount of stock a contract into which the stockholder en. as was alleged, or that he had a claim tered upon subscribing to or obtaining his against the corporation which, in law or stock, which the legislature had no power equity, he might be enabled to set off as to change without running counter to the against a claim for assessments, or from constitutional requirement invalidating making any other defense personal to him- laws impairing the obligation of contracts. self; and that the order of assessment was constitution, art. 1, § 10. conclusive upon stockholders only in so far It may be regarded as settled that, upon as it decided the amount of assets or lia-acquiring stock, the stockholder incurred an bilities of the insolvent corporation and obligation arising from the constitutional the necessity of making an assessment upon provision, contractual in its nature, and, as the stock to the extent and in the amount such, capable of being enforced in the courts ordered. not only of that state, but of another state The constitutionality of the act was and of the United States (Whitman v. Naagain affirmed in the same court in the tional Bank, 176 U. S. 559, 44 L. ed. 587, 20 later case of London & N. W. American sup. Ct. Rep. 477), although the obligation Mortg. Co. v. St. Paul Park Improv. Co. is not entirely contractual, and springs pri84 Minn. 144, 86 N. W. 872. marily from the law creating the obligation The stockholders' liability in Minnesota, (Christopher v. Norwell, 201 U. S. 216, 50 L. as in some other states, has its origin in a ed. 732, 26 Sup. Ct. Rep. 502). constitutional provision, and arises under $ Is there anything in the obligation of 3, article 10, of the Constitution of that this contract which is impaired by subsestate. The language is: quent legislation as to the remedy, enacting "Liabilities of stockholders. new means of making the liability more ef"Each stockholder in any corporation (ex- fectual ? The obligation of this contract cepting those organized for the purpose of binds the stockholder to pay to the credcarrying on any kind of manufacturing or itors of the corporation an amount sufficient mechanical business) shall be liable to the to pay the debts of the corporation which its amount of stock held or owned by him." assets will not pay, up to an amount equal The courts of Minnesota have held that to the stock held by each shareholder. That a stockholders' liability is, therefore, fixed is his contract, and the duty which the and measured by the Constitution. Willis statute imposes, and that is his obligation. v. Mabon (Willis v. St. Paul Sanitation Co.) | Any statute which took away the benefit 48 Minn. 140, 16 L.R.A. 281, 31 Am. St. Rep. of such contract or obligation would be 626, 50 N. W. 1110; McKusick v. Seymour, void as to the creditor, and any attempt to S. & Co. 48 Minn. 158, 50 N. W. 1114. It is increase the obligation beyond that incurred apparent from a consideration of this con- by the stockholder would fall within the stitutional provision that its purpose was prohibition of the Constitution. But there to make a stockholder liable to the creditors was nothing in the laws of Minnesota unof the corporation in an amount not ex- dertaking to make effectual the constituceeding the par value of the stock held by tional provision to which we have referred, him, and thus secure, for the benefit of such preventing the legislature from giving adcreditors, in addition to the assets and prop-ditional remedies to make the obligation of erty which the corporation might possess, the stockholder effectual, so long as his orthe liability of those who hold its stock in iginal undertaking was not enlarged. There a sum necessary to make good any deficien- is a broad distinction between laws impaircy between the amount of the assets and ing the obligation of contracts and those the debts within the limitation stated. It which simply undertake to give a more effiis evident from the general language used cient remedy to enforce a contract already in this constitutional provision that while made. a remedy might have been worked out in the courts of equity in the state, it was Justice Marshall in Sturges v. Crowninproper, if not necessary, that a statute shield, 4 Wheat. 122, 4 L. ed. 529, as folshould be passed to make more effectual lows: the liability thus secured by the Constitu- “The distinction between the obligation tion. of a contract and the remedy given by the in This principle was stated by Mr. Chief |
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