tion. But the exemption, even to this extent, will not pass to the new body where an intent to discontinue it appears from the statute.2 If the effect of a consolidation is to terminate the existence of a corporation, which holds an irrepealable grant of exemption, the new corporation which succeeds to its property and powers will become subject to taxation. Whether the legislature intended to continue the exemption will depend upon the terms of the act which invested the new corporation with the privileges of the old one, and of existing legislation relative to taxation.3 If, at the time when the corporation which held the grant of exemption ceased to exist, there was a constitutional provision which made all subsequent charters subject to amendment or repeal, it will apply to the new corporation, and the legislature cannot invest it with the irrepealable exemption which belonged to the extinct corporation. But if the effect of the consolidation is not to destroy the old corporations and create a new one, the grant of exemption to the corporation will continue, and will not be affected by a statute reserving the power to amend, which took effect between the time when the grant was made and the time when the consolidation was effected.5 Exemption of the Instruments or Agencies of the United States. A State cannot tax the means or instruments employed by the government of the United States in the execution of its powers." This principle is not founded on any express prohibition in the Constitution, but on the necessity that the means for executing those powers should not be interfered with; and it does not exclude State legislation which does not interfere with the agencies of the national government, or impair their efficiency. Thus, while a State cannot tax the capital of national banks 1 Phil. & W. R. Co., Maryland, 10 How. 376; Tomlinson v. Branch, 15 Wall. 460; Delaware Railroad Tax, 18 Wall. 206; Central R. & B. Co. v. Georgia, 92 U. S. 665, 675; Branch v. Charleston, 92 U. S. 677; Chesapeake & O. R. Co. v. Virginia, 94 U. S. 718; State v. Com'r of Railroad Taxation, 8 Vroom, 240, 243. 2 Maine Cent. R. Co. v. Maine, 96 U. S. 499, 66 Me. 488. 4 State v. Northern Cent. R. Co., 44 Md. 131; Shields v. Ohio, 95 U. S. 319. 5 Central R. & B. Co. v. Georgia, 92 U. S. 665, 54 Ga. 401. But in other cases a consolidation is held to work an extinction of the corporations composing the new one. Shields v. Ohio, 95 U. S. 319; Atlantic & G. R. Co. v. Georgia, 98 U. S. 359, 60 Ga. 268. 3 Maine Cent. R. Co. v. Maine, 96 U. 316. S. 499, 66 Me. 488. 6 McCulloch v. Maryland, 4 Wheat. created by the United States, it can tax the individual shares of stockholders, and collect the tax of the corporation itself; and this although the capital is partly or wholly invested in national securities. It cannot tax a railroad bridge owned by the United States, although used by a private corporation under a contract or license.2 A State may, in the absence of prohibition by Congress, tax the property of a railroad corporation created by State legislation, although it serves as a carrier to the national government as well as the public, and has received grants from it of lands and money, and made a mortgage to it; and although as a condition of such aid it is required to perform certain services and duties. And the property of a corporation so used and endowed is liable to State taxation, even though incorporated by the national government.4 Remedies for Illegal Assessments. The ordinary remedies in the case of taxes illegally assessed and levied are an action at law after a compulsory payment, either of trespass against the collecting officer, or of assumpsit against such officer or the public corporation to which the amount has been paid. These remedies are ordinarily ample, and do not involve the public embarrassments incident to the intervention of equity in such cases. Equity will not, therefore, enjoin the collection of a tax alleged to be illegal, where there is an adequate remedy at law. It will not interfere by its preventive process on account 1 Van Allen v. Assessors, 3 Wall. 573; People v. Com'rs, 4 Wall. 244; National Bank v. Commonwealth, 9 Wall. 353; Austin v. Boston, 14 Allen, 359. 2 Chicago, R. I., & P. R. Co. v. Davenport, 51 Iowa, 451. As to the time when public lands granted to railroad companies become taxable, see Kansas Pacific R. Co. v. Prescott, 16 Wall. 603; Union Pacific R. Co. v. Com'rs, 98 U. S. 541 (modifying Union Pacific R. Co. v. McShane, 22 Wall. 444). 3 Thomson v. Kansas Pacific R. Co., 9 Wall. 579; Huntington v. Central Pacific R. Co., 2 Sawyer, 503; People v. Central Pacific R. Co., 43 Cal. 398; Western Union Telegraph Co. v. Richmond, 26 Gratt. 1. Wall. 5 (three judges dissenting); Union 5 As to what is a compulsory payment, see Union Pacific R. Co. v. Com'rs, 98 U. S. 541; Dickinson County v. National Land Co., 23 Kan. 196; Vermont Cent. R. Co. v. Burlington, 28 Vt. 193. 6 Brewer v. Springfield, 97 Mass. 152; Loud v. Charlestown, 99 Mass. 208; Greene v. Mumford, 5 R. I. 472; Cook County v. Chicago, B., & Q. R. Co., 35 Ill. 460; Chicago & N. W. R. Co. v. Fort Howard, 21 Wis. 44; Union Pacific R. Co. v. Lincoln County, 2 Dill. 279; State Railroad Tax Cases, 92 U. S. 575, 613; Parmley v. St. Louis, I. M., & S. R. Co., 4 Union Pacific R. Co. v. Peniston, 18 3 Dill. 13. of mere irregularities, hardship and injustice in the assessment, or errors or excess in valuation; and, indeed, these are, in most cases, not available in an action at law to a party resisting the tax. Nor will equity enjoin merely because the tax is void for non-compliance with material provisions of law. Among the reasons for its abstinence in such cases is its inability to apportion the tax, or make or order a new assessment.2 The remedy by injunction should be granted only where the case can be brought under some recognized head of equity jurisprudence, as where there would otherwise be a cloud on the title, or a multiplicity of suits, or any irreparable injury.3 Other grounds for equitable intervention, which have been admitted under special circumstances, are that the tax was unauthorized by law, or assessed upon property not subject to taxation, or fraudulently assessed at too high a rate; and there has been a disposition to allow the remedy where grave constitutional questions were in issue.4 The equitable remedy has been sought to such an extent when there was no substantial question as to the validity of a part, even the greater part of the tax, thus delaying the collection of lawful taxes to the public detriment, that a rule has been adopted by the national tribunals that no injunction, preliminary or final, will be granted to stay the collection, unless it is made to appear that the portion of the tax, if any, which is conceded to be due, or which can be seen to be due on the face of the bill, 1 Chicago, B., & Q. R. Co. v. Frary, 22 Ill. 34; Ottawa v. Chicago & R. I. R. Co., 25 Ill. 43; Cook County v. Chicago, B., & Q. R. Co., 35 Ill. 460; Huck v. Chicago & A. R. Co., 86 Ill. 352; Missouri River, Ft. S., & G. R. Co. v. Blake, 9 Kan. 489; Smith v. Leavenworth, 9 Kan. 296; Huntington v. Central Pacific R. Co., 2 Sawyer, 503. Wheaton, 7 Kan. 232; Matheny v. Golden, 5 Ohio St. 361; Oliver v. Memphis & L. R. R. Co., 30 Ark. 128; Morris Canal & B. Co. v. Jersey City, 1 Beasley, 227. A bill to set aside a sale for illegal taxes and remove a cloud on the title was sustained in Mobile & G. R. Co. v. Peebles, 47 Ala. 317. 4 Illinois Cent. R. Co. v. McLean 2 State Railroad Tax Cases, 92 U. S. County, 17 Ill. 291; Cook County v. Chi575, 614. cago, B., & Q. R. Co., 35 Ill. 460; Chicago, B., & Q. R. Co. v. Cole, 75 Ill. 591; Porter v. Rockford, R. I., & St. L. R. Co., 76 Ill. 561; North Carolina R. Co. v. Com'rs, 82 N. C. 259; Burlington & Mo. R. R. Co. v. County Com'rs, 7 Neb. 487; Louisville & N. R. Co. v. Gaines, 3 Fed. Rep. 266, 12 Chicago Leg. News, 407. See Toledo & W. R. Co. v. Lafayette, 22 Ind. 262. 3 Heywood v. Buffalo, 14 N. Y. 534; Susquehanna Bank v. Supervisors, 25 N. Y. 312; Western R. Co. v. Nolan, 48 N. Y. 513; Dows v. Chicago, 11 Wall. 108; Hannewinkle v. Georgetown, 15 Wall. 547; State Railroad Tax Cases, 92 U. S. 575, 614; Huntington v. Central Pacific R. Co., 2 Sawyer, 503; Missouri River, Ft. S., & G. R. Co. v. Morris, 7 Kan. 210; Missouri River, Ft. S., & G. R. Co. v. or can be shown on affidavits to be due, whether conceded or not, has been paid or tendered.1 A stockholder may, in a case proper for equitable relief against illegal assessment, bring a suit in behalf of himself and other stockholders where the corporation refuses to take action, making the corporation a party.2 1 State Railroad Tax Cases, 92 U. S. 575; Union Pacific R. Co. v. Lincoln County, 2 Dill. 279; Mobile & O. R. Co. v. Moseley, 52 Miss. 127. See Pelton v. National Bank, 101 U. S. 143; Cummings v. National Bank, 101 U. S. 153. 2 Davenport v. Dows, 18 Wall. 626. See Paine v. Wright, 6 McLean, 395. CHAPTER XIX. THE POWERS OF THE CORPORATION. Limited Powers of a Corporation. A corporation is a creature of the law. Deriving its existence and faculties from the express grant of the legislature, it has only the powers so conferred, and all others are presumed to have been withheld.1 That legislative grants to a corporation, whether of powers or exemptions, are to be strictly construed, so that nothing passes except what is given in clear and explicit terms, is a familiar doctrine which is applied with more stringency when the powers in question interfere with private rights or abridge important functions of government. A technical reason for this rule of construction is that the grant, being made by the State at the request of the citizen, is supposed to have been made in his language in a bill submitted by him, and therefore, in case of doubt or ambiguity, the construction should be against him; but a more substantial reason for the rule is that it tends to prevent improvident grants. A distinction is taken between grants to a public body intended only for the public benefit, which are to be liberally construed, and grants to individuals and associations which, though they may result in incidental benefits to the community, are primarily designed for the profit of the grantees, and therefore invite a severer scrutiny.2 The Rule of Strict Construction of Corporate Powers, how to be applied. The rule, which applies a strict construction to corporate grants, must, however, be understood in a reasonable sense as not requiring the power to be invariably conferred in express words, but admitting its existence when necessarily implied from any Dartmouth College v. Woodward, 4 Wheat. 518, 636. 1 "Being the mere creature of law, it [the corporation] possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence." 2 Bradley v. New York & N. H. R. Co., 21 Conn. 294; Galloway v. London, L. R. 1 H. L. 34. |