ON MOTION FOR REHEARING. Defendant's motion for rehearing, as did its brief en Banc (also brief of amicus curiae), stresses the provision of the general corporation laws of 1845 (R.S. 1845, p. 232, Ch. 34, Art. 1, Sec. 7) making charters "subject to alteration, suspension, and repeal in the discretion of the legislature." Seton Hall College v. South Orange, 242 U.S. 100, 37 S.Ct. 54, 61 L.Ed. 170, and Covington v. Kentucky, 173 U.S. 231, 19 S.Ct. 383, 43 L.Ed. 679, are cases cited as authority for the proposition that this statute became a part of the plaintiff's charter and contract, and was a reservation of the right to repeal its tax exemption. [Citing also Missouri cases: Watson Seminary v. Pike County Court, 149 Mo. 57, 50 S.W. 880; Gregg v. Granby Mining Smelting Co., 164 Mo. 616, 65 S.W. 312.]
This contention was not fully discussed in the Divisional opinion because defendant's principal contention in the trial court, and before Division One, was that the Act of 1851 was no part of plaintiff's charter and therefore the tax exemption was not contractual at all. This latter point is also reargued in the motion for rehearing. We held that it was "reasonable to consider the two acts together as constituting plaintiff's entire charter and its acceptance as such," and we adhere to that ruling.
The point of reservation of the right of repeal is thus stated: *Page 98
"Even if the Court should hold that the provisions for tax exemption in the Act of 1851 were contractual, the Court must hold that such tax exemption was revocable under the reserved power to alter, suspend or repeal contained in the corporation law under which the college was chartered and which statutory reservation became a part of the charter."
However, even this contention would not change the result we have reached. Defendant assumes that this tax exemption was repealed by the adoption of the Constitution of 1865 and 1875. However, this court held in Scotland County v. Missouri, Iowa Nebraska R. Co., 65 Mo. 123, that the provision of the 1865 Constitution prohibiting tax exemptions (Sec. 16, Art. 11) "was evidently designed to be prospective and not retrospective in its operation, and it would be an unjust imputation on the Convention which framed that Constitution to infer that they designed that section to operate upon existing rights." This ruling was approved and followed in State ex rel. Dosenbach v. St. Joseph's Convent of Mercy, 116 Mo. 575, 22 S.W. 811.
In the Convent of Mercy case, this court held that the same thing was also true of the provisions of the Constitution of 1875, saying:
"We are unable to see why the Constitution of 1875 should receive, as to these sections, a different construction from that of 1865. As to prospective legislation, they are both clear and specific, but in neither do we discover any intention that they should act retrospectively. . . .
"It would be violative of this almost universal canon of construction to hold that these general affirmative provisions should have a retroactive effect, and that they repeal this exemption under the general language of the Constitution in the section quoted."
This ruling as to the effect of the provisions of both Constitutions was again approved and followed in State ex rel. Morris v. Board of Trustees of Westminster College, 175 Mo. 52, 74 S.W. 990. Furthermore, as we pointed out in the Divisional opinion, the Constitution of 1875 provided what is in effect a savings clause (Sec. 1, Art. 12) to preserve [610] "existing charters, or grants of special or exclusive privileges," when at the time of its adoption "the corporation was organized and the contemplated charter powers exercised." Therefore, whatever may be the power of the state to repeal plaintiff's tax exemption under the reservation in the general corporation law of 1845, it did not do so by adopting the Constitutions of 1865 and 1875, or by general statutes enacted for the purpose of carrying out the provisions of those Constitutions.
In the Granby Mining Company case, supra, the corporation had amended its original charter 30 years later, after the adoption of the 1875 Constitution, and the real basis of the decision was that this change and extension of its business thereunder estopped it from *Page 99 claiming exemption from statutes passed under the authority of the provisions of that Constitution. In the Watson Seminary case, supra, the Seminary was not a private but a public corporation administered as a public trust by the County Court. "There were no private incorporators, share or stockholders" and "the control of the state is perpetuated as long as the charter is effectual." The court held that there could be no contract in that situation. Neither of these cases are authority for holding that there has been any repeal of plaintiff's charter or any part thereof. (See also State ex rel. Morgan v. Hemenway, 272 Mo. 187, 198 S.W. 825, where the city of Glasgow, after the adoption of the Constitution of 1875, gave up its previously granted charter to come within its general provisions.)
The motion for rehearing is overruled.