Lead Opinion

The opinion of the court was delivered by

Mr. Justice McGowan.

The Columbia & Greenville Railroad Company, in paying their taxes to the defendant as treasurer of Richland County for the year 1884, paid, among others, an *66item of $1,061.40, being the proportion, of the expenses of the railroad commission of the State, assessed upon the said corporation by the comptroller general, and charged up against said corporation as directed by the appropriation act, approved December 24, 1884, which provides that, “For the salaries of the railroad commissioners, six thousand three hundred dollars ; for the cleric of the railroad commissioners, twelve hundred dollars ; for rent of office, if so much be necessary, four hundred dollars ; and three hundred and fifty dollars to pay the contingent expenses of the office for the year 1885, if so much be necessary; to be advanced by the State, until the same shall have been collected from the railroad companies of the State, in- the manner prescribed by law, and when collected the same shall be replaced in the State treasury,” &c.

The item aforesaid was paid under protest, and this action was brought under the “act to facilitate the collection of taxes” (incorporated in the General Statutes as section 268), to recover back the sum so paid, on the ground “that the act, by virtue of which it was claimed and collected, is unconstitutional, null, and void, and said collection was wrongful and illegal.” The defendant, Gibbes, as treasurer, answered, denying that the law under which the said item was assessed against and collected from the said corporation, is unconstitutional and void, or that the same was illegally and wrongfully collected.

The cause came on for trial before Judge Witherspoon, and the defendant made requests to charge as follows :

I. “That the presumption is in favor of the constitutionality of the acts of the legislature of the State, and the burden is upon the plaintiff to show beyond a reasonable doubt that they are unconstitutional.-

II. “That the amount collected from the plaintiff, a corporation operating a railroad within this State, as its just proportion of the expenses of the railroad commission, having been apportioned upon its gross income proportioned to the number of miles in this State, if regarded as a tax, is not a tax upon property, but upon ‘an occupation’ or business, and being regulated according to the amount of business done as ascertained by its gross income, and being uniform and equal in its operation *67upon all of that class without discrimination, was lawfully assessed and collected.

III. “That the amount collected from the plaintiff, a corporation operating a railroad within this State, being its proportion of the expenses necessarily incurred in the enforcement of the laws enacted by the State for the inspecting and regulating of the business carried on by the plaintiff for the safety and protection of the public and of the individual citizens of the State, ivas lawfully assessed and collected, under the police power of the State.

IY. “That the provisions of the general railroad law of the State, under and by virtue of which the amount was collected from the plaintiff, are part of the charter of said company, and the plaintiff cannot maintain this action to recover back the amount paid by it.

Y. “That he should instruct the jury to find a verdict for the defendant.”

The judge reports that “after hearing counsel for the plaintiff and attorney general for the defendant, I must conclude that the assessment made and the amount collected from plaintiff under section 1453 of the General Statutes is the imposition of an extra or additional tax, illegal and unjust, and in violation of the provisions of the constitution, above cited (sections 23 and 36, of article I., and also section 1, article IX.). This assessment is referred to as a tax, and the same means are provided for enforcing and collecting it as provided for collecting other taxes for the State,” &c. Under this charge of the judge there ivas a verdict for the plaintiff for the amount claimed, and the defendant appeals to this court upon the ground of error in the charge.

The action was brought under section 268 of the General Statutes, to recover back “a tax wrongfully collected under protest,” and cannot be sustained, unless it appears that the exaction complained of was unconstitutional. The appropriation was made in accordance with the act of 1879, “to create a railroad commissioner for the State of South Carolina and to define his duties” (16 Statutes, 789, and now section 1453 of the General Statutes), which, among other things, provides that “the entire expenses of the railroad commissioner, including all salaries *68and expenses of every kind, shall be borne by the several corporations owning or operating railroads within this State, according to their gross income proportioned to the number of miles in this State, to be apportioned by the comptroller general of the State, who, on or before the first day of October in each and every year, shall assess upon éach of said corporations its just proportion of such expenses, in proportion to its said gross income for the current year ending on the thirteenth day of June next preceding that on which the said assessment is made; and the said assessment shall be charged up against the said corporations respectively, under the order and direction of the comptroller, and shall be collected by the several county treasurers, in the manner provided by law for the collection of taxes from such corporations, and shall be paid by the said treasurers as collected into the treasury of the State, in like manner as other taxes collected by them for the State,” &c.

The assessment was made by the appropriation act in accordance with this law. It is manifest that the provision requiring the State to advance the expenses and to be reimbursed by the railroad companies, was merely an arrangement of convenience, being substantially a requirement that the railroad companies of the State should pay the expenses of the railroad commission. The single question, therefore, is whether the aforesaid act of 1879, under and by authority of which the appropriation was made, is binding on the plaintiff corporation, or is wholly null and void as being unconstitutional. As we have several times had occasion to repeat: “It is an axiom in American jurisprudence that a statute is not to be pronounced void on this ground, unless the repugnancy to the constitution be clear and the conclusion that it exists inevitable. Every doubt is to be resolved in favor of the enactment. The particular clause of the constitution must be specified and the act admit of no reasonable construction in harmony with its meaning. The judicial function involving such result is one of delicacy and to be exercised always with caution. Township v. Talcott, 10 Wall., 673.” Pelzer, Rodgers & Co. v. Campbell & Co., 15 S. C., 593.

The argument at the bar was able and took a wide range, embracing the questions, whether the exaction complained of, was *69merely an assessment imposing the expenses upon a railroad company for its own supervision and regulation, as it is sometimes required to bear the expenses of erecting and maintaining fences, enclosing their own right of way, and other like safeguards; or whether it was a technical tax for revenue, and if the latter, whether it was a tax on “an occupation” or a tax on property, and as such in conflict with section 1 of article IX. of the Constitution, requiring all taxes on property to be uniform; and also in conflict with sections 23 and 36 of the Bill of Rights, which require all property taxed to be taxed in proportion to its value, and denounce the taking of private property for public uses without the consent of the owner or a just compensation being made therefor. But it will be observed, that all these questions rest upon the view of prior vested rights as in an individual, and that they cannot arise in reference to a corporation, unless such rights have been already secured to it, by the law giving it existence. It seems to us, therefore, that there is a question lying further back as to whether the plaintiff corporation had any vested right, of which the exaction complained of was an infringement.

All corporations are artificial bodies, merely creatures of the State; and as the State may or may not call them into existence, so she may limit their existence and mould and form them in precise accordance with her view of what is right or politic. A corporation, therefore, is purely statutory. It has no physical existence, and its legal entity being invisible, its powers, duties, obligations, and immunities must be looked for alone in the laws which create it. In most essential matters, the terms upon which the franchise is granted appear in the charter and constitute a ■contract between the State and the corporations, which is under the protection of the provision in the constitution forbidding the passage of a law impairing the obligation of contracts. But inasmuch as the State, one of the contracting parties, has the power of legislation and is charged with exercising that power for'the welfare of her citizens, a very nice question often arises as to how far and in what particulars, she may amend a charter which she had previously granted. Without, however, going into that matter now, we merely say that, although the State has the gen*70eral power of legislation, she may grant a franchise in such manner as to confer vested rights and to exclude herself from after-wards abridging them by legislation. But for reasons most obvious, such grant, to have the effect of excluding legislation by the State, must be clear, explicit, and unconditional. If the State, in creating a corporation, expressly reserves to herself the right in future to amend the charter generally or in any particular indicated, and such charter is accepted, that corporation may not afterwards object to the exei’cise of that reserved power, subject to which the charter was accepted, thereby making it a part of the fundamental contract. See Big. JSstop., 515, and authorities.

What, then, was the contract of the State as contained in the charter of the plaintiff corporation ? In order to determine this, it will be necessary to ascertain the terms of the charter, interpreted in the light of the time and circumstances under which it was granted. The pleadings in the case are short, merely making the constitutional question, without undertaking to set out with particularity the date or terms of the plaintiff’s charter. It is not stated in the complaint that the plaintiff, “The Columbia and Greenville Railroad Company,” is a corporation under the laws of the State, but the answer admitted that the plaintiff was such corporation, without, however, stating when and where it became such. There is on the statute book no act expressly chartering such company, and it must therefore have become a corporation under the general law of 1376, to which more particular reference will be hereafter made. The proceedings by which the plaintiff secured its charter are not set out in the case, but it was stated at the bar, and as we understand conceded, that they took place in the year 1880; but whether it was so conceded or not, it was not made to appear that it was at an earlier day, and, as we conceive, it was incumbent upon the plaintiff to show that it had corporate existence at the time of the passage of the act, which it claims to be unconstitutional.

The old “Greenville and Columbia Railroad Company” was chartered as far back as 1849, and, as the charter shows, was originally exempt from the provisions of section 41 of the act of 1841 (now section 1361 of the General Statutes), which declares that “every charter of incorporation granted, renewed, or modi*71fiecl, shall at all times remain subject to amendment, alteration, or repeal by the legislature.” But the old company afterwards (1869) consented, for a consideration, that their charter should be so amended as to make its property subject to taxation in conformity to section 2, article 12, of the Constitution of 1868, which declares that “the property of corporations now existing or hereafter created shall be subject to taxation except in cases otherwise provided for in this constitution.” While its franchises and immunities were in this state and condition, the old company became involved, and the road was sold under orders of the court. At that sale it was purchased by certain persons, who formed a new company in the name of the “Columbia and Green-ville Railroad Company,” under the “act to enable-purchasers of railroads to form corporations and to exercise corporate powers, and to define their rights, powers, and privileges,” approved March 24, 1876 (16 Stat., 160, and now part of the general railroad law as sections 1420,1, 2, 3, and 4 of the General Statutes).

That act provides “that in case of the sale of any railroad * * * by virtue of any mortgage or deed of trust, whether under foreclosure or other judicial proceedings, * * * the purchaser or purchasers thereof, or his or their survivors, representatives, or assigns, may, together with their associates (if any), form a corporation for the purpose of owning, possessing, maintaining, and operating such railroad * * * by filing in the office of the secretary of State of this, State, &c. Such corporation shall possess all the powers, rights, immunities, privileges, and franchises in respect to such railroad, or the part thereof included in such certificate, and in respect to the real and personal property appertaining to the same, which were possessed or enjoyed by the corporation which owned or held such railroad previous to such sale under and by virtue of its charter and any amendments thereto, and of other laws of this State,” &c. The charter granted to the new company under the provisions of this act could confer no other franchises and immunities than those which were possessed at the time of the sale by the old Green-ville & Columbia Railroad Company, and contained no negation whatever of the power of the State to legislate upon the subject; and therefore it is clear, indeed it seemed to be assumed in the *72argument, that the charter of the new company was taken subject to the law now embraced in section 1361 of the General Statutes, making it “at all times subject to amendment, • alteration, or repeal, by the legislature.”

But it is strongly urged upon us that the exaction complained of, being an assessment in the appropriation act of successive years for so much money, to pay the expenses of the railroad commission, cannot, in any proper sense, be termed an amendment, or successive amendments, of the charter of the plaintiff corporation; but, on the contrary, is an extra tax annually imposed, and as such, is in conflict with the provisions of the constitution before referred to. From the view which the court takes it will not be necessary to determine the precise character of the exaction assailed. The appropriation'act which required its payment made no independent original levy, but was merely an assessment to carry out in execution the actual provisions of the general law of 1879, now section 1453 of the General Statutes, which required all the railroad companies of the State to pay the expenses of the railroad commission. Where objection is made to the specific appropriation of the year 1884, the question is thrown back upon the general act of 1879. If that act is binding upon the plaintiff corporation, it cannot object to the clause in the appropriation act of 1884, which was a mere specification under the general authority previously given. It may be that the general law of 1879 cannot be considered as an amendment of the charter of plaintiffs, for the very conclusive reason that it was in existence at the time the charter was granted; but, as it seems to us, it was more than an amendment — it was a part of the charter itself, or at least one of the conditions upon which the charter was granted and accepted.

The plaintiff corporation is undoubtedly bound by all the provisions of the act under which it was created, one of which was that it should have only the rights, franchises, and immunities which were possessed by the old Greenville & Columbia Railroad Company at the time of the sale “under and by virtue of its charter, or any amendments thereto, and of other laws of this State.” As we understand it, this was an express contract that the charter w;as accepted subject to all the laws then of force *73applicable to railroads. On November 22, 1880, when the secretary of State certified that the purchasers of the Greenville Railroad had formed a new corporation under the laws of the State; there was on the statute book of the State a general lav/, part of what is called the general railroad law of the State, declaring that every railroad company of the State should contribute its just proportion towards the payment of the expenses of the railroad commission then in existence. Under these circumstances, the charter to the plaintiff corporation was granted by the State, without any reference whatever to the aforesaid liability declared by law; and as the intention of parties must concur to constitute a contract, we are not at liberty to assume that the State intended to grant, or did grant, to the plaintiff any vested rights inconsistent with her own law then on the statute book. The purchasers who became corporators had notice of that law. They accepted the charter in full view of a public act of which all are bound to take notice, and it thereby became a condition of the charter — in a certain sense, a part of the contract — and they cannot afterwards be heard to object to the enforcement of that law. “In general, one who accepts the terms of a contract must accept the' same in toto ; he cannot accept part and disclaim the rest.” Big. JEstop., 514.

But it is said that the exaction is in itself unconstitutional, and, being such, the legislature could not assume a power prohibited by the constitution even with the consent of the parties concerned. We have endeavored to show that whether an exaction by the State upon a corporation is or is not constitutional must depend upon the character of the rights -with which the State has endowed the corporation. If it has been invested with no rights of which the exaction would be an infringement, we do not clearly see how it could be called unconstitutional, any more than the provision in most railroad charters that the company shall at its own expense erect fences, cattle-guards, &e.

If the State were now to create a railroad corporation and insert in the charter in totidem verbis, the provision requiring that it should pay its just proportion of the expenses of the railroad commission, and the corporators should accept that charter and put the road into operation, we suppose there can be no *74doubt that they would be bound by all the provisions of the contract, and would not be heard to say that the one in reference to the payment of the expenses of the railroad commissioners was unconstitutional and void. In Hand v. Savannah and Charleston R. R. Co. (12 S. C., 314), the court held that a certain act of the legislature purporting to postpone a particular class of bonds was unconstitutional; but at the same time it was held that those who had by their conduct assented to the act were estopped from denying its validity as to them. In the judgment of the court the doctrine is announced in the following terms: “It is too clear for argument or the citation of authorities that one taking a provision made for himself by a statute must take upon the conditions upon which it was offered. The principle equally applies to express conditions, and such as may be fairly implied from the terms of the statute,” &c.

No case upon the precise point under consideration has been brought to our attention; that of The Atcheson, Topeka & Santa Fe R. R. Co. v. Howe, as treasurer of the State of Kansas (32 Kans., 737) is in no way inconsistent with the, principles herein announced. The State of Kansas passed an act concerning railroads and other common carriers, and charged the expenses of the commission established, not upon all common carriers which were to be regulated by the act, but only on railroad companies, and therefore it was held that as a tax the exaction was unconstitutional, as not being uniform. In delivering the judgment of the court, Mr. Justice Hurd said: “It is evident that the legislature regarded this tax as a property tax, and not as a license or an inspection tax, because the tax is not assessed upon all the companies, corporations, and persons subject to be regulated by the provisions of the statute,” &c.

It seems that the States which have created railroad commissions to inspect and regulate railroads differ as to the manner of providing for the payment of the expenses. Tennessee, Wisconsin, Ohio, Rhode Island, Michigan, Minnesota, Illinois, Missouri, and California each defrays the expenses of its commission directly out of the public treasury; while in -New Hampshire, Maine, Vermont, Alabama, and perhaps other States, different *75methods are adopted to apportion the expenses among the railroads regulated.

The judgment of this court is that the judgment of the Circuit Court he reversed and the complaint dismissed.

Mr. Chiee Justice Simpson concurred.

Dissenting Opinion

Mr. Justice McIver.

I dissent, but owing to the pressure of other official duties, I cannot now undertake to give the reasons why I am unable to concur in the conclusion reached by the majority of the court.

A petition was filed by defendant asking for a rehearing, upon which the following order was passed December 16, 1885 :

Per Curiam.

We have carefully read this petition for a rehearing. All the points made were considered before the opinion was filed, in which it was stated as follows: “The proceedings by which the plaintiff secured its charter are not set out in the case, but it was stated at the bar, and as we understand conceded, that they took place in the year 1880; but whether it was so conceded or not, it was not made to appear that it was at an earlier day, and, as we conceive, it was incumbent on the plaintiff to show that it had corporate existence at the time of the passage of the act which it claims to be unconstitutional,” &c. In the view which the court took it was wholly immaterial whether such concession was made or not, for it was incumbent on the plaintiff corporation to show that its charter antedated the “act to create a railroad commissioner for the State of South Carolina and to define his duties,” &c. Until that appeared, no case was made sufficient to raise the general question of the unconstitutionality of that act.

The question was necessarily limited to the corporation making it. This court cannot, even by the consent of parties, authoritatively determine general propositions. As was said in one of our cases: “The court does not sit for the purpose of determining mere abstract questions of law, but to determine whether the law, as applicable to a particular case, has been correctly stated,” &c. The single question made in the pleadings was whether the *76exaction upon the Columbia and Greenville Railroad Company was wrongfully and illegally collected because the act by virtue of which it was collected was unconstitutional and void. That was the only “point fairly arising upon the record of the case,” and it was considered and decided. No important fact or principle having been overlooked, there is no ground for a rehearing. The petition is dismissed.