upon the shares of non-resident owners, and that, if they pay such a tax, they cannot retain it out of dividends declared upon such shares. The company having no control over the shares, and no agency on behalf of the owners, any such payment must be regarded as voluntary. And the mere color of legislative or judicial proceedings, wholly without jurisdiction, will not render the payment compulsory, in the view of the law. So in Hood's Estate, 21 Penn. State, 106, it was held that a collateral inheritance, where neither the property taxed nor the domicile of the ancestor was within the state, could not legally be taxed there. VII. We conclude therefore that this imposition, as a tax, is void for many reasons and upon many grounds.

1. If it be attempted to be justified as a mode of taxing the non-resident stock and resident equally, it wholly fails of any such purpose, since the tax is much more in amount than is ever required "of residents for any purposes of state taxes. And it would scarcely be claimed that the state could collect for their own use town and county taxes from persons who belong to no town or county in the state. And if it were ever so small, that would not make it legal, if levied in this mode.

2. In a book 38 of high credit, and which has been often quoted with approbation by the courts in this country, it is said: "The general rule appears clearly to be, every person is liable to be assessed for his personal property in the state of which he is an inhabitant; and stock owned in incorporated banks, &c.,

..

non-resident holders thereof, is not subject to the taxing power of the state. Indeed the stock is not a thing capable in itself of being taxed on account of its locality, and any tax imposed upon it must be in the nature of a tax upon income, and of necessity confined to the person of the owner, who, if he be a non-resident, is beyond the jurisdiction of the state, and not subject to its laws." 39

3. As a tax upon the portion of the capital stock of the railways represented by the shares of non-residents, it may justly be said that the shares do not represent any particular portion of the capital stock. But if we were to admit that the share

Angell & Ames on Corp. § 458.

39 Union Bank of Tennessee v. The State, 9 Yerg. 490.

holders are tenants in common of the capital stock, which is not true in any strict legal sense of title, we still encounter the fatal irregularity so often before alluded to, of taxing the interest of one tenant in common upon a totally different principle from that which we apply to the interest of other tenants, which seems at war with all just notions of taxation.

4. If it be well founded in law, that the legislatures of the several states possess the power to tax property within their limits, belonging to citizens of the other American states not resident in the state where they hold property, upon principles altogether distinct from that upon which they tax the same class of property belonging to resident citizens, then indeed are the property-rights of non-resident citizens wholly at the mercy of such legislature, with no check or control whatever, which we think we have sufficiently disproved, as being at war both with the general principles of taxation, and the fundamental principles of the United States Constitution.

VIII. In regard to the right of these non-resident citizens and shareholders to obtain an injunction out of chancery, in the Circuit Court of the United States, restraining the treasurer of the company from paying over any such tax as is required by the statute to the treasurer of the state out of the dividends upon these shares, or against the treasurer of the state from taking proceedings to enforce the tax, we think there can be no question whatever. It seems to be almost the very point decided in Osborne v. The Bank of the United States.40 The Circuit Courts of the United States possess full jurisdiction in the case, on account of the non-residence of the plaintiffs, and the subject-matter of the imposition being in violation of the guaranties of the United States Constitution, which it is the especial duty of the Federal Courts to vindicate and enforce, it seems highly proper they should be appealed to in regard to it. There can be no question, therefore, in my judgment, either in regard to the right or the remedy.

9 Wheaton, 738. The legislature cannot pass a law to govern a particular case. It is a mere decree. Holden v. James, 11 Mass. R. 496.

SECTION VI.

Power of the Legislature to modify the Charter of Trinity Church, New York.

1. The real question involved in the whole case, is settled by the act of 1814.

I. Was Trinity Church, in 1814, a private corporation?

1. This question has been evaded, by calling the property of Trinity Church a trust.

But

the same question arises in regard to a trust, as in regard to a corporation, whether it is public or private.

2. Eleemosynary corporations, colleges, academies, and churches are private.

3. Distinctions between public and private schools.

4, 5, 6, 7. Law of the Dartmouth College case stated.

8. Analogy between that case and this stated; and other similar cases referred to, and the analogy between college and academic corporations and churches stated.

9. Definition of a public college or university.

10. Definition of a private college or university.

II. Trinity Church being a private eleemosynary corporation, it did not become subject to legislative control, because the principal fund arose from a royal grant.

1. Public grants to private corporations have always been common.

2. They impose no different duties from private grants.

3. Public colleges and academies may exist.

4. Parish churches in England, public corporations, but the parish system never transplanted into the colonies.

5. Conclusion, that Trinity Church is in all respects a private corporation.

III. Charter viewed as a contract.

1. Every amendment is also a contract, when accepted.

2. Cases upon the subject reviewed.

IV. How far such charters are subject to repeal, alteration, or amendment, by the legisla

ture.

1, 2. The authority and application of the case of Dartmouth College v. Woodward stated.

3. Other cases in the United States Supreme Court stated.

4. The law of the cases in the State Courts discussed.

5. Case of Louisville v. The University.

6, 7, 8, 9. The law and the evidence concur in one result, that the State legislature have no control over this corporation, and never exercised or claimed any such control.

V. Is the proposed alteration of the charter a violation of the corporate rights?

1. No franchise of a private corporation more vital than that of self-government.

2. No security to the corporation that the legislature will not do injustice.

3. No justification for doing injustice to Trinity Church, that some great good is proposed to be thereby effected.

4. Or that the funds might be more wisely managed.

5. Or that the petitioners act in good faith.

6. It is easy for men to commit the most flagrant outrages upon private right, in most perfect good faith.

7. These illustrations may seem not likely to occur, but from the past we know not what to expect.

8. It may be said a void law can do but little injury.

1, 2, 3, 4. But it does much, in many ways.

VI. Questions incidental to the main inquiry.

I. 1, 2, 3, 4, 5. The relations and duties of the corporation, and of the cestuis que trust,

in reference to their rights and duties, discussed.

11. But if all that is claimed in regard to the facts is conceded, the act of 1814 did not impair any vested right.

111. Non-parishioners never had the right to vote in the elections in Trinity Church. IV. Extent of the visitatorial power.

§ 233 c. The following opinion, prepared at the request of the vestry of Trinity Church, New York, as it contains our own view of the law of one of the most important controversies in regard to property, both in amount and in the character of the questions involved, which has arisen in the country, and as it was, at the time, immediately acquiesced in by a very numerous, learned, and influential opposing interest, and has hitherto continued to be thus acquiesced in, and as many of the suggestions here made, although made nearly ten years ago, have a striking significance at the present time, when the constitution of the government is undergoing very marked changes, both by formal amendments and new constructions, we have thought we could present nothing more acceptable to the profession, and we are sure that no plea in favor of the inviolability of the written law could be more temperate, or earnest, or sincere.

In preparing an opinion upon the law of this case, I have endeavored to pursue the same course I should have done were the case before me judicially. The principal difference of which I have been conscious was the want of formal argument before me, when I could direct the attention of counsel to those points upon which I specially desired elucidation. This want has been, to a considerable extent, supplied by the arguments before former committees of the New York Legislature, and the reports of the majority and minority of some of these committees upon the several points involved. I have prefaced my opinion with no statement of facts, because they all appear in documents already in print, and a repetition of them here would only extend the opinion, to no useful purpose.

1. It seems to me that the discussions before the committees

of the New York Legislature, as is common before such bodies, took a much wider range than is necessary or desirable. I shall, therefore, confine myself mainly to those points which seem to me decisive of the rights of the parties. In this view it seems to me, as the controversy all turns upon the question of repealing or modifying the act of 1814, in relation to the charter of this church, that we may lay out of the case all extended examination of the rights of this corporation before the date of the act in question. For even if the corporation possessed the same rights before that act which it does under it, the repeal is not unimportant. I shall assume as unquestionable that the act of 1814 did constitute, or, more specifically, define an important franchise of the charter of this corporation. I mean the essential franchise of the qualification of its electoral body. And it will render the act of 1814 scarcely less important, if we admit that the corporation possessed substantially the same electoral franchise before that it did after that act. For the clear definition of an important franchise is as essential a grant as its creation.

I. The only inquiry, behind the act of 1814, important to the estimate of the inviolability of the corporate franchises of Trinity Church, is whether that church was justly to be regarded as a private corporation, or was to be treated as a public corporation. The council of revision, consisting of some of the ablest jurists the State has ever had, having the law of 1814 under consideration, assume as matter of course that the charter is “private grant," and one of the objections made to the act is based upon that ground alone. No question whatever seems to have been then made upon this point as matter of fact. And I am not aware that this has ever been seriously questioned by any one.

1. But from the discussions which seem to have arisen before the committees and among the different members, I infer that it has been attempted to be maintained, that the corporation have only a trust estate in the property granted to them, and that this is a trust of so public a character as to be subject to legislative control. This argument, if it has any just foundation, must rest upon the distinction between public and private corporations. For all corporate property is, in one sense, held in trust. It is a trust for the benefit of the shareholders in the case of private joint-stock corporations. It is upon this ground