Liverpool Ins. Co. v. Massachusetts - 77 U.S. 566 (1870)
U.S. Supreme Court
Liverpool Ins. Co. v. Massachusetts, 77 U.S. 10 Wall. 566 566 (1870)
Liverpool Insurance Company v. Massachusetts
77 U.S. (10 Wall.) 566
1. A corporation created by one state can only exercise its corporate franchises in another state by the comity of the latter.
2. A joint stock association, which by its deed of settlement in England and certain acts of Parliament is endowed with the faculties and powers mentioned below is a corporation, and will be so held in this country, notwithstanding the acts of Parliament, in accordance with a local policy, declare that it shall not be so held. These faculties and powers are:
1. A distinctive artificial name by which it can make contracts.
2. A statutory authority to sue and be sued in the name of its officers as representing the association.
3. A statutory recognition of the association as an entity distinct from its members by allowing them to sue it and be sued by it.
4. A provision for its perpetuity by transfers of its shares, so as to secure succession of membership.
3. In this country, the individual responsibility of the shareholder for the debts of the association is not incompatible with the corporate idea.
4. Such corporations, whether organized under the laws of a state of the Union or a foreign government, may be taxed by another state, for the privilege of conducting their corporate business within the latter.
A statute of the state just named imposes upon
"each fire, marine, and fire and marine insurance company, incorporated or associated under the laws of any government or state other than one of the United States, a tax of 4 percent upon all premiums charged or received on contracts made in this commonwealth for insurance of property."
The same statute imposes a tax of but 2 percent upon such premiums when the company is incorporated under the laws of any one of the United States other than Massachusetts, upon which premiums, where the company is incorporated by itself, it imposes but 1 percent, while no tax is imposed by the laws of the state upon the business of insurances transacted by any natural persons citizens of the same.
With the enactment just mentioned on its statute book, the State of Massachusetts in 1868 filed a bill in its Supreme Judicial Court against the Liverpool & London Life and Fire Insurance Company (a company doing a large business in that state), to collect a tax of 4 percent on its premiums upon contracts made in Massachusetts for insurance of property and to restrain the company from doing further business till the tax was paid. The company set up that it was not "incorporated" at all, but was an association, under the laws of Great Britain, of natural persons, some of whom were citizens and residents of the country just named, and some citizens and residents of the State of New York, formed for the purpose of conducting the business of insurance under certain deeds of settlement and having the legal character of a partnership; that accordingly it could not be taxed as a "company incorporated under the laws of any government or state other than one of the United States," while insofar as the discriminating tax of 4 percent was sought to be laid against it as a company associated simply and not incorporated, it violated, in regard to the members
of the company who were subjects of Great Britain, a provision in the treaty of 1815 between that country and the United States by which it is agreed that the merchants and traders of each nation respectively shall enjoy the most complete protection and security for their commerce, and, in regard to the citizens of New York, that provision in Section 2, Article IV, of the federal Constitution which secures to the citizens of each state all the privileges and immunities of citizens in the several states.
Of course if the company was a corporation, the defense failed, and it not being denied that the persons composing the company were British subjects, with certain citizens of New York with rights like theirs, the first question -- and the only one if it was resolved affirmatively -- was whether the company was a corporation or not.
The company had been originally formed, in May, 1836, in Liverpool, by a "deed of settlement."
This instrument, as far as it could be done without the aid of Parliament, established a company under the name of "The Liverpool Life & Fire Insurance Company," with a capital of £2,000,000 sterling, which was divided into 100,000 shares of £20 each, and declared its purpose to be making insurance on life and against fire. These shares could be sold and transferred, and executors and administrators represented them in the company on the death of the owner. If, by the laws of the association, a share became forfeited, the owner was released from all further liability to the company. The business of the company was to be conducted by a board of directors exclusively, and they could make bylaws and change and modify them. There was a covenant that suits might be brought by or against the company in the names of one or more directors, which should bind the stockholders, and that no stockholder would plead in abatement the nonjoinder of the others; and it was further covenanted that a judgment so obtained against a director might be made out of the property of any of the stockholders. Numerous other provisions were found in the original articles, which consisted of over a hundred sections,
but only those are referred to here which bear on the question which the court had before it. There were also three subsequent deeds of settlement, and three acts of Parliament were passed to give efficiency to the purposes of the association.
The first of these acts provided that the association might sue and be sued in the name of the chairman or deputy chairman of the board of directors; that the stockholders might sue the company as plaintiffs or be sued by it as defendants. It regulated the manner in which the shareholders might be made individually liable for the debts of the association, and it declared that the act should not be construed to incorporate the company or relieve its members from their individual liability except as provided in the act.
The second act of Parliament changed the name of the company to that which it now bears, and authorized it to make contracts by the new name, and it also contained a provision that the act should not make the company a corporation, and there was a third act which authorized amalgamation with another company, and which again provides against its being construed into an act of incorporation or a limited liability partnership.
The Supreme Judicial Court of Massachusetts gave a decree against the company and enjoined it from the further prosecution of its business till the taxes found to be due were paid.
The case was now brought to this Court on the ground that in its application to the company, the statute of Massachusetts was in conflict with the provision of the Constitution which confers on Congress the right to regulate commerce with foreign nations and among the states and with that which secures to the citizens of each state all the privileges and immunities of citizens in the several states.