We reach the conclusion, after a careful consideration of these cases, that was reached by the referee, that the piovision of the Constitution in reference to the liability of stockholders in corporations, as it existed prior to the recent amendment, is self-executing. Whether that be so or not, we reach the conclusion that the legislation of 1903, whereby it ivas sought to relieve a stockholder from liability, is in contravention to the provisions of the Constitution, that the act is therefore invalid, including the repealing clause, so that the liability of the stockholder is governed by the statutes as they were prior to that amendment. An opinion has not been prepared on all of the propositions, although every one of them that are involved in this case have been carefully considered.
On this matter of the constitutionality of the law, attention is called in our own state to the case of State of Ohio v. Sherman, 22 Ohio State, 411, from which I will not stop to read, and outside of Ohio, to the ease of Willis v. St. Paul Sanitation Company, 16 Lawyers Reports Annotated, 281, where it is held that Article X, paragraph 3, of the Constitution of Minnesota providing that each stockholder in any corporation (excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business), shall be liable to the amount of stock held or owned by him, is self-executing.
. In Woodworth v. Bowles, 61 Kansas, 569, it is held that tbe provision of tbe Constitution of tbe state of Kansas, Article XII, Section 2 thereof which provides that dues from corporations shali be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law, is not self-executing.
But in Whitman v. Oxford National Bank, 176 U. S., 559, in the opinion delivered by Justice Brewer of Kansas in considering this same provision of the Constitution of the state of Kansas, he says that the words in this constitutional provision “shall be secured” are not merely directory to the Legislature to make provision for such liability, but themselves declare it. Toi this ektent the Constitution is self-executing.
In Farmers Loan & Trust Company, 49 Neb., 353, it is held that Section 7, Article XI of the Constitution of Nebraska, which provides that every "stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors over and above the amount of stock by him held to an amount equal to his respective stock or shares so held, for all liabilities accruing while he remains such stockholder, etc., is self-executing.
We reach the conclusion, therefore, .that the liability of the stockholders to the creditors is exactly as it was prior to the statute of 1902. The subscription made by all those persons who subscribed to the blanks made them stockholders.
We reach the conclusion that was reached by the referee.as to each of the parties in the case, and a decree will be drawn accordingly and exceptions noted.