The opinion of the court was delivered by
Mr. Chief Justice Simpson.
Section 1453 of the General Statutes imposes liability in certain proportions upon the railroad companies of this State for the salaries of the officers known as railroad commissioners. The appellant denies the constitutionality of this act, and claims exemption therefrom on that ground.
The appellant was brought into existence under its present [391]*391name in 1869 by the consolidation of two other companies previously chartered and in operation at that time as separate companies. This consolidation was made by virtue of the act of March, 1869. The two original companies which, by consolidation, made t'he appellant company, it is conceded, were not subject to the 41st section of the act of 1841, whereby the power to alter, amend, &c., certain charters granted by the legislature was reserved; on the contrary, said companies were expressly excepted from the operation of said section, thus giving them vested rights which could not have been interfered with by any subsequent legislation had they remained separate and distinct, and continuing to exercise the rights and powers conferred upon them in the original charters. Dartmouth College Case. The consolidation, however, in 1869, dissolved the two original companies and created an entirely new company — the appellant — with rights and privileges not dependent or derived from the charters of the original companies, but upon the act authorizing the consolidation and the law governing corporations at the time.
Now, at the time of this consolidation the constitution of 1868, and the act of 1841, in reference to corporations, were of force. The constitution (art. XII., section 1) declares “that corporations may be formed under general laws, but all such laws may from time to time be altered and repealed.” And further: “Thatthe legislature shall regulate the public use of all franchises, and limit tolls, imposts, and other charges and demands under such laws.” Sec. 5. The act of 1841 provided in section 41, “That it shall be deemed a part of the charter of every corporation created under the provisions of any general laws, and of every charter granted, renewed, or amended by act or joint resolution of the general assembly (unless such act or joint resolution shall, in express terms, declare the contrary), that such charter, and every amendment thereof, should always remain subject to amendment, alteration, or repeal by the general assembly.” Act of 1841, 11 Stat., 168, now section 1361, General Statutes.
It is hardly necessary to discuss the question whether the appellant company, having been brought into existence in 1869, since the adoption of the constitution of 1868, and while the act of 1841, supra, was of force, is subject to amendment, altera[392]*392tion, and repeal at the discretion of the legislature, there being no exemption from section 41 of the act of 1841 in the act under which the consolidation took place. The case of Hoge v. The Railroad Company (99 U. S., 348) is full to this point, where the act of 1841 was construed, and where the court said : “Every charter amended or modified was subject to repeal, amendment, or modification. Such is evidently the meaning of the 41st section of that law, though the intention is inaptly expressed; and if an exemption from further legislative control had been originally acquired by the company, it ceased when the amendment to the charter was obtained.” If such is the effect of a mere amendment, surely a consolidation of two companies into one, as was had here, thereby creating an entirely new company and destroying the others (Shields v. Ohio, 95 U. S., 319), would bring the new company under the legislative control of the act of 1841, whatever may have been the vested rights of the previous companies.
It is perfectly clear, then, that the appellant company cannot successfully claim exemption from legislative control by virtue of any rights derived from its charter. Nor can it deny that the general assembly has general power to amend, alter, or repeal said charter, as provided in section 41 of the act of 1841, and in the article XII., section 1, of the Constitution of 3868. This was the contract under which said company was created, and it is bound thereby. In fact, the rights of all corporations are founded in contract, which must be construed and enforced as all other contracts, to wit, according to the intent of the parties. It was upon this theory that the great Dartmouth College Case was decided. There being no reservation of power applicable to that case, either in the charter itself, or in any general law upon the subject, the court was compelled to hold that the rights of the college, as specified in the charter, were matters of contract, and were therefore inviolate, and could not be assailed or impaired in any way by subsequent legislation.
It has been upon this theory, too, that many cases have'since decided that where a corporation accepts a charter under a general law, or under a provision of the constitution of the State reserving control over all corporations created therein, or under [393]*393a special provision of the charter itself to that effect, it is subject to such control, and may be amended and altered, as in the judgment of the general assembly the public interests may demand. See Black on Constitutional Prohibition, sections 33, 34, ec seq.,. and the cases there cited. And it was upon this theory also that the recent case of the Columbia & Greenville R. R. Co. v. W. H. Gibbes (24 S. C., 60) was decided, in which the constitutionality of the act now under consideration was sustained as to said company — this court holding that said company having organized since said act was passed, had thereby contracted with reference thereto, and was bound by its provisions as a part of the act of incorporation. And it is upon this theory that the appellant here must be held, bound. In fact, we can see little or no difference in the principle which controlled the court in that case and the one which must be applied here. It is true, that the Columbia & Greenville R. R. Company accepted its charter after the general railroad law of 1878 had been enacted, and thereby incorporated its provisions into its charter as a part and parcel thereof, but what is the difference in principle in accepting a charter with certain stipulations therein, and in accepting one with a consent and an agreement, that the legislature granting said charter may insert such stipulations afterwards, if in its discretion it sees proper to do so ? They both rest upon contract, and both may be enforced under the general law of contracts.
According to this view, if the act complained of, and which has imposed a liability upon the appellant to pay its proportion of the railroad commissioners’- salary, is a legitimate amendment under the act of 1841 and the constitution, then it can make no difference what it may be called — whether a tax for revenue, a police regulation, or a license fee. Whatever it may be, the company has contracted to pay it; and if it claims the privileges and rights of its charter, it must take them with the burdens imposed. It cannot enjoy the one and repudiate the other. So that it follows that the only question in the case is, has the general assembly in reference to the appellant transcended its power to alter, amend, and repeal the charters of corporations reserved in the constitution and the act of 1841, section 1361, of the General Statutes ?
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The opinion of the court was delivered by
Mr. Chief Justice Simpson.
Section 1453 of the General Statutes imposes liability in certain proportions upon the railroad companies of this State for the salaries of the officers known as railroad commissioners. The appellant denies the constitutionality of this act, and claims exemption therefrom on that ground.
The appellant was brought into existence under its present [391]*391name in 1869 by the consolidation of two other companies previously chartered and in operation at that time as separate companies. This consolidation was made by virtue of the act of March, 1869. The two original companies which, by consolidation, made t'he appellant company, it is conceded, were not subject to the 41st section of the act of 1841, whereby the power to alter, amend, &c., certain charters granted by the legislature was reserved; on the contrary, said companies were expressly excepted from the operation of said section, thus giving them vested rights which could not have been interfered with by any subsequent legislation had they remained separate and distinct, and continuing to exercise the rights and powers conferred upon them in the original charters. Dartmouth College Case. The consolidation, however, in 1869, dissolved the two original companies and created an entirely new company — the appellant — with rights and privileges not dependent or derived from the charters of the original companies, but upon the act authorizing the consolidation and the law governing corporations at the time.
Now, at the time of this consolidation the constitution of 1868, and the act of 1841, in reference to corporations, were of force. The constitution (art. XII., section 1) declares “that corporations may be formed under general laws, but all such laws may from time to time be altered and repealed.” And further: “Thatthe legislature shall regulate the public use of all franchises, and limit tolls, imposts, and other charges and demands under such laws.” Sec. 5. The act of 1841 provided in section 41, “That it shall be deemed a part of the charter of every corporation created under the provisions of any general laws, and of every charter granted, renewed, or amended by act or joint resolution of the general assembly (unless such act or joint resolution shall, in express terms, declare the contrary), that such charter, and every amendment thereof, should always remain subject to amendment, alteration, or repeal by the general assembly.” Act of 1841, 11 Stat., 168, now section 1361, General Statutes.
It is hardly necessary to discuss the question whether the appellant company, having been brought into existence in 1869, since the adoption of the constitution of 1868, and while the act of 1841, supra, was of force, is subject to amendment, altera[392]*392tion, and repeal at the discretion of the legislature, there being no exemption from section 41 of the act of 1841 in the act under which the consolidation took place. The case of Hoge v. The Railroad Company (99 U. S., 348) is full to this point, where the act of 1841 was construed, and where the court said : “Every charter amended or modified was subject to repeal, amendment, or modification. Such is evidently the meaning of the 41st section of that law, though the intention is inaptly expressed; and if an exemption from further legislative control had been originally acquired by the company, it ceased when the amendment to the charter was obtained.” If such is the effect of a mere amendment, surely a consolidation of two companies into one, as was had here, thereby creating an entirely new company and destroying the others (Shields v. Ohio, 95 U. S., 319), would bring the new company under the legislative control of the act of 1841, whatever may have been the vested rights of the previous companies.
It is perfectly clear, then, that the appellant company cannot successfully claim exemption from legislative control by virtue of any rights derived from its charter. Nor can it deny that the general assembly has general power to amend, alter, or repeal said charter, as provided in section 41 of the act of 1841, and in the article XII., section 1, of the Constitution of 3868. This was the contract under which said company was created, and it is bound thereby. In fact, the rights of all corporations are founded in contract, which must be construed and enforced as all other contracts, to wit, according to the intent of the parties. It was upon this theory that the great Dartmouth College Case was decided. There being no reservation of power applicable to that case, either in the charter itself, or in any general law upon the subject, the court was compelled to hold that the rights of the college, as specified in the charter, were matters of contract, and were therefore inviolate, and could not be assailed or impaired in any way by subsequent legislation.
It has been upon this theory, too, that many cases have'since decided that where a corporation accepts a charter under a general law, or under a provision of the constitution of the State reserving control over all corporations created therein, or under [393]*393a special provision of the charter itself to that effect, it is subject to such control, and may be amended and altered, as in the judgment of the general assembly the public interests may demand. See Black on Constitutional Prohibition, sections 33, 34, ec seq.,. and the cases there cited. And it was upon this theory also that the recent case of the Columbia & Greenville R. R. Co. v. W. H. Gibbes (24 S. C., 60) was decided, in which the constitutionality of the act now under consideration was sustained as to said company — this court holding that said company having organized since said act was passed, had thereby contracted with reference thereto, and was bound by its provisions as a part of the act of incorporation. And it is upon this theory that the appellant here must be held, bound. In fact, we can see little or no difference in the principle which controlled the court in that case and the one which must be applied here. It is true, that the Columbia & Greenville R. R. Company accepted its charter after the general railroad law of 1878 had been enacted, and thereby incorporated its provisions into its charter as a part and parcel thereof, but what is the difference in principle in accepting a charter with certain stipulations therein, and in accepting one with a consent and an agreement, that the legislature granting said charter may insert such stipulations afterwards, if in its discretion it sees proper to do so ? They both rest upon contract, and both may be enforced under the general law of contracts.
According to this view, if the act complained of, and which has imposed a liability upon the appellant to pay its proportion of the railroad commissioners’- salary, is a legitimate amendment under the act of 1841 and the constitution, then it can make no difference what it may be called — whether a tax for revenue, a police regulation, or a license fee. Whatever it may be, the company has contracted to pay it; and if it claims the privileges and rights of its charter, it must take them with the burdens imposed. It cannot enjoy the one and repudiate the other. So that it follows that the only question in the case is, has the general assembly in reference to the appellant transcended its power to alter, amend, and repeal the charters of corporations reserved in the constitution and the act of 1841, section 1361, of the General Statutes ?
[394]*394There is no doubt but that the appellant received its existence with full knowledge that this reserved power hung over it — a power which, at least so far as the terms of the reservation are concerned, was unlimited as to alteration, amendment, and repeal. And the question now is not whether such power exists, but whether the act in question has gone beyond it. We think this has been settled in the recent case of the Columbia & Greenville R. R. Company, supra. There the same act was in controversy and the same question raised and based very much upon the same ground. The court held, in substance, that the act was a part of the charter, inasmuch as the charter was granted and accepted after the passage of the act. If, then, the legislature could incorporate into the charter the provisions of the act imposing the liability complained of at the beginning, without violating the sections of the constitution relied on here as to taxation, &c., why could it not do so after the organization of the company as well, the reservation of power to amend, &c., having prevented the vesting of rights beyond the reach of such amendment ? The ground upon which we held that this could be done in the Green-ville & Columbia case, was the consent of the company, thereby waiving all objection, constitutional or otherwise.
So here the appellant contracted to take its existence under an unlimited power in the legislature to alter, amend, and repeal. And it is too late now to complain. Consensus faeit jus. It may be said, however, that this consent was given under the protection of the constitutional provisions invoked, and therefore it was never understood or agreed that these guarantees of the constitution, as to the rights mentioned, should be violated ; but that this reserved power of amendment referred to the ordinary amendments, &c., such as would not affect the substantial rights conferred. The power reserved is very broad, according to the terms of the act. It covers the whole subject, “amendment, alteration, and appeal,” and there certainly is no limitation in the language used. Nor do we know where to fix the boundary, except it should not go beyond the ends to be accomplished or intended to be subserved by the reservation, which no doubt was regulation, conti'ol, and supervision, to the end that public interests might be protected as well as that of the coi'porations. We [395]*395do not see that the act in question transcends this boundary; on the contrary, it seems to be within it.
The constitutional guarantees invoked were primarily, at least, for the protection of natural citizens — those who had rights before the constitution was adopted, over and above it, and for the protection of which government was instituted; and the builders of the government fearing to give it unlimited power, inserted in the constitution, the organic law of the government, certain guarantees as a bill of rights. A corporation, however, differs in many respects from a natural citizen. It.has no natural existence or natural rights. It is a creature of the government, and by the act of government. It has life, if life at all, as a matter of grace, and can demand nothing. It is emphatically clay in the hands of the potter, and must take its life at the will of the government, or not at all. “Hath not the potter power over the clay?” Besides,, it can protect itself if it sees proper by simply refusing to enter into the contract proposed, or, if after having once accepted, by throwing up its charter if the subsequent burden imposed proves too onerous.
From our view of this case it is wholly unnecessary to follow the counsel into their able and interesting argument on the subjects of taxation, police regulations, and licenses, because, whether this assessment on the appellant is made and collected as the one or the other, it is yet made because the appellant has consented and contracted to pay it, in consideration of life and separate existence and large privileges granted; and if it claims these, it must submit to and abide the contract in its entirety.
But conceding that a corporation has the same right to invoke the sections of the constitution referred to, as a natural person would have, and to the same extent, does the act in question under that view violate said sections ? These sections are found in art. I., section 36, and article IX., section 1. The first declares that taxation upon property shall be ad valorem, and the second, that it shall be uniform. Does the act impose a tax on property, and is it objectionable because not “uniform” ? It is clearly not a tax on property assessed according to its value. It is a declaration in substance by the legislature that railroad companies may pursue their business upon condition that they shall [396]*396pay each a proportion of the salary of the railroad commissioners, the proportion being fixed by a uniform rule applied to each. It is, therefore, moi'e in the nature of a license fee. It is true that the amount collected is to go into the public treasury, and it is collected as a tax ; but it is intended to reimburse the State for these salaries paid by the State to the commissioners, who are, to some extent, officials of said companies, or at least whose duties appertain to said companies, and not to the general public; and it therefore may be properly styled a license tax, collected and appropriated for the proper regulation- and benefit of the corporations paying it. And being assessed upon all railroad corporations alike, it is “uniform,” in accordance with the true meaning of the constitution.
But can a tax be imposed and collected other than upon property and according to its value ? Is art. I., section 36, supra, exhaustive upon this subject? This question was fully and thoroughly examined and determined in State v. Hayne, 4 S. C., 403, the court holding, after a most elaborate review and discussion of the whole matter in all its phases, that this section was not exhaustive as to the powers of the general assembly on the subject of taxation, and while, when a tax is imposed on property (which, it is admitted, is the general subject matter for taxation), it must be assessed upon the value of the property, and not otherwise, yet that the State was not limited to property as the only basis of taxation, and in that case a tax on the profession of law in the shape of a license fee was held constitutional.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.