The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-05-19

therefore have been under no necessity of
making provision for the regulation. of
rates of fare. leaving that an open ques-
ton until its successors should deem II adj
viSable to regulate, or ii might have made
provision for the future by prescribing that
when the city should have grown to the
population of 900 or 100000, as shown by
the last preceding census, the fares should
be limited to maximum price, leaving all
the board of directors as the necessities
OF the street-railway company and Increase
have provided that in cities of a hundred
thousand inhabitants the fares should not
and under a hundred thousand that it
should not exceed 4 cents, and so on, and
although in its applicatio at the present
time such legislation would mean cents
in Indianapolis, 4 cents in Evansville and
in all other cities of the State without limit
it could hardly be open TO the objection
inasmuch as that subject is not prohibited
by Section %, the courts must say, under
the cases cited above that that was a queS-
ton within the discretion of the Legislature
that the courts could not review. 1t is, we
insist clear that the validity of the amend
ment of March 6, 1897, is not affected by
legislation contained in either Sections %
or 70 of Article 4, and this brings us TO
the discussion of the question whether the
Legislature is prohibited by Section 13 OF
Article IL.
CORPORATIONS AND SPECIAL ACTA
This section reads as follows: 'Corporn~
tons, other than banking, shall not be
created by special act, but may be formed
under general laws Prior to the adoption
of the Constitution, in 1851, corporations
were not formed under general laws, but
were created by special enactments. The
time and attention of each session of the
General Assembly was taken up with the
consideration of applications to grant char-
tiers to A, B, and c for every conceivable
purpose under the sun, and this was one
of the evils that the constitutional conven-
ton had to consider. and against, and for
which, it was to make provision. 1t would
seem from an examination of the reports
OF that convention, that its time was about
equally divided between the question OF
abolishing the grand jury, the question of
banking, the question of local and special
laws, and the question of the rights OF
married women" After giving a history of
the constitutional debates on this subject
and quoting various decisions showing the
reluctance of courts to overthrow .egisla-
tive acts, the attorney general continues:
With these rules as the compass to guide
in the determination of the particular ques-
ton presented by this provision of the Con-
stitution we inquire what is the limitation
of the section: Corporations shall not be
created by special act. The continuance
of an old charter is not me creation of q
new corporation, nor does 1t infringe on
the constitutional provision restricting the
creation of new corporations; but recog-
nlzing and continuing existing ones" He
quotes definitions from Bowers and Ander-
son, and says:
1T would seem that with these definitions
before us there ought 20 be no difficulty
in aScertaining what is prohibited by the
first clause of this section. 1t is that no
special act shall be passed which ex proprio
Vigore creates a new corporation. That
was the method that had heretofore OBJ
tanned in this State, and that was the
method that was required by the Constitu-
ton to stop. The Legislature should not,
by special enactment, bring into being any
corporation. So much for the prohibitory
part. The granting part is contained in the
latter clause of the section But corpora
tions may (shalD be formed under general
laws Paraphrased, the section would read:
The Legislature shall enact general laws
under which corporations may be formed;
but they shall in no contingency, by a
special law or charter, create Chat is pro-
duce) a new corporation. Mr.. Clark, in
his work on corporations, is quoted and the
brief says:
AN instance of this is presented in the
case of San Francisco VS.. The Spring VAL
ley Water Works, 49, Cal 493 In that case
the Legislature of California had granted
to certain individuals certain powers, and
provided that the act should not take effect
unless the persons to whom the grant was
made should, within a certain time, organ
ize themselves into a corporation, under ex-
listing laws and it was held; first, that
this was a grant not to the Individual, but
to the corporation when formed and, Sec
ond, that such an act was an attempt by
the Legislature to confer powers and privi-
leges upon corporation by special act,
and that that action was forbidden by the
Constitution of California"
1t is declared that in many of the States
the language of the constitutional provision
is essentially different from that contained
in the Constitution of Indiana, and the
Kansas. Missouri, Nebraska Ohio and
Pennsylvania are quoted and number OF
decisions under them are discussed.
NO NEW CREATION.
In conclusion the attorney general says:
1T cannot be claimed that the amendment
of 1897 granted any new power or created
any new right so as to bring the legisa-
ton in question even on the border line of
the constitutional inhibition against the
creation of a corporation. 1t is simply the
exercise by the General Assembly, unused
for thirty years, of the right to regulate
the fares to be charged by a common
carrier for the carriage of passengers.
THE General Assembly must, in the
courts, be neld to have ascertained first,
that 1t was necessary to regulate the fares
in certain contingencies; second, that that
contingency only required such regulation
In cities having a population as shown by
the last census of over one hundred thou
sand.
IF the act In question is to be treated
as general end classified, making two class
ifcatons, oile of all the cities having a
population iii excess of one hundred thou
sand and another of all cities having pop
ulation of less than one rundred thousand.
then ii must be held as a general law. If,
on the other hand, as said by this court,
in Mode ct al VS.. BeaSley ct al. AS Ind,
306 because of the fact that 1t applies and
can only apply, as this court knows, judi
cially, 20 but the one city in the State cit
applies to all street-rallroad corporations,
whether now in existence or whether here
after created in this oitY> then under the
rule that obtains with eference to holding
an act Unconstitutional, this court must
conclude, alt rough the General Assembly
did not so say in form Of words, that 1t was
an act concerning a sabject matter upon
which the General Assembly was OF the
opinion that general law could not be
made applicable: and when the General As
sembly has so concluded its conclusion is.
upon the authorities heretofore given, not
to be controverted in the cause
1T cannot be said with reason or JUS
tice that such a contention is destructive
of the rights of investors in the stock or
securities of such corporation. Every in
vestment is made with knowledge of the
right Of the Legislature to regulate fares,
of the right to amend existing laws upon
the subject of incorporation, and 1t is not
to be presumed in this court or elsewhere
that the General Assembly has or will vio-
late or disregard the constitutional pro-
vision which requires all laws to be general
where that can be done.
THE courts are not to be made a harbor
of refuge for distressed corporations or corr
porate investors, where under an invest
ment of small amount of money, in the
hope and belief that the rights of the many
shall be disregarded in the interest of the
few, bonded Indebtedness of four millions
and capital stock of five millionl has been
placed in the hope that the courts win tie
the hands of the people and regard public
statutes as common enemies whose speedy
determination is specially committed to the
courts.
we submit that this act of 1897 Is free
from constitutional infirmity; that the APP
pellee only exercises the right accorded to
him by the statute, and that the Judgment
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