The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-07-23

UlIIeTeUT.
matter stands it seems impossible TO say
that the parties ltigant here are not en-
titled to the opinion of this court, treat
ing the decision of the Supreme Court of
Indiana with respectful and careful con-
sideration. but not as of binding force.
Apart from the diverse citizenship OF the
parties, there is here distinctly the ques-
ton whether or not the enactment of 1891
impairs the obligation of the charter con-
tract-whether or not the enactment of 1877
does not violate the Constitution OF the
United States. The decision of the Indiana
court, assuming that appellant in that case
was entitled to and did make upon the
record the federal question-is not final,
but subject to review by the Supreme Court
of the United States. In Burgess VS.. Sellg77
man, be IL noticed, there was no federal
question: and the decision of the state
Supreme Court was final and conclusive
upon the parties and state courts.
In Adams Express Company vs.. ONO
| C65, u. s., 194) the decision of the Supreme
Court OF OHIO upon the question Whether
the tax law in controversy violated Ine
Constitution of Ohio was held final. But
this feature of that case raised no tederaI
question The State of C>nio had made
no contract the sense of which was TO
turn on the meaning of the Ohio Constitu-
ton as authorizing or not AUTHORIZING such
legislation. In deciding merely that the
statute in question was not in VOCATION
of the Constitution of the State the Su-
preme Court of Ohio had no federal ques-
ton before it. But the construction OF me
statute, apart from its relation to the Con-
stitutiOn of Ohio by the Ohio court was
not taken as final by the federal courts.
There was no claim made that the law,
if valid, would break the obligation of any
contract TO which the State was or was
not a party. But it was contended that
the act violated certain other provisions OF
the national Constitution. On this con-
tention the opinion of the, Supreme court
of Ohio was not treated as conclusive
The federal courts followed that court
merely because they agreed with it.
FEDERAL QUESTION PRESENT.
1.-The Federal question is more distinctly
to the front in the case at bar than even
in Reagan VS.. Farmers Loan and Trust
Company. In the latter case it did not APP
pear that the charter contract contained
any express provision as to rates The
court inquired whether an engagement by
the State to permit reasonable rates was
not an implied term in the charter contract,
and ruled that this inquiry brought the
charter contract into the case for cOnstruc-
ton. If the charter contract contained
such an implied term, then the question
would be whether the statute objected TO
in the case was in violation Of that con
tract Following is the language of Mr..
Justice Brewer:
Still another matter is worthy of note
in this direction. In the famous Dartmouth
College case, Wheat, 5lS, it was held that
the charter of a corporation is a contract
protected by that clause of the national
Constitution, which prohibits State from
passing any law impairing the oDHgatlon
Of contracts. The International q Great
Northwestern Railroad Company IS a COR
poration created by the State of Texas.
The charter which created it is a contract
whose obligation neither party can repudi'
ate without the consent of the other. Az
that is within the scope of his contract need
not be determined Obviously, one obhga-
ton assumed by the corporation was to
construct and operate a railroad between
the term1ni named; and on the other hand,
one obligation assumed by the state was
that it would not prevent the company from
so constructing and operating the road. If
the charter had in terms granted to the
corporation power to charge and collect a
mile TRANSFORMATION
of persons or of property, it would not be
doubted that that express stipulation
formed a part of the obligation of the State
which it could not repudiate. Whether, in
the absence of an express stipulation of
that character there is not implied in the
grant OF the right to construct and oper-
ate, the grant of right to charge and col
lect such tolls as will enable the company
to successfully operate the road and return
some profit to those who have invested
their money in the construction, is a ques-
ton not as yet determined. 1t is at least
question which arises as to the extent to
which that contract goes, and one in which
the corporation has a right to invoke the
judgment of the courts; and if the corpOr-
alton, a citizen of the State, has the right
to maintain suit for the determination of
that question: clearly citizen of another
state, who has, under authority of the laws
OF the State of Texas, become pecuniarily
interested in, equitably indeed the beneficial
owner of, the property of the corporation
may invoke the judgment of the Federal
courts to whether the contract rights
created by the charter and of which it is
subsequent acts of the State in limitation
OF the right to collect tolls. Our conclu-
sion from these considerations is that the
objection to the jurisdiction of the Circuit
Court is not tenable"
Il may here add, in connection with the
matter above quoted, that the Reagan case
must necessarily be understood as pre-
senting a federal question, and not only
federal question, but a question which
of the Constitution of the United States
or question which concerned the con-
stitutton or law. of State as being in
contravention of the Constitution of the
United States Otherwise, the Reagan
case could not have gone, in the first in
stance, to the Supreme Court of the United
States, but must have gone to the Court
OF Appeals of the fifth circuit 1t will be
seen from the foregoing quotation from
the opinion of Mr. Justice Brewer what one
federal question was.
NO NEED TO SHOW BOOKS.
I'm the case at bar there can be no In
quiry as to the reasonableness of the s.
cent rate, or the unreasonabIeness of the
scent rate, unless the enactment of 1887 be,
within the terms of Section H. when read
in the light of constitutional restrictions.
an amendment to this act meaning the
act of 1861 If the enactment of 1897 be
void, then the city and Mr.. Wiltsie in en-
forcing it, would be mere wrong-doers. The
bill AYERS, in effect, that if no injunction
be granted, the railway company will either
Defendant Wiltsie in which case the COM
plainants security will be diminished in
value, or. in defiance of the city and De-
PENDANT Wiltsie, refuse to obey, in which
case the security will be destroyed Under
the circumstances and assuming the act
of 1897 invalid, can the defehdants the city
and WtltSie insist as against this bill that
complainant must show that a reduction
from cents to cents in the fares would
make the income from the mortgaged prop
erty insufficient to pay operating expenses
and the interest on the mortgage debt?
Does it lie in the mouth of a mere wrong
doer, as against a proceeding to stop the
wanton destruction, or impairment in value
of given property. to object that since
the complainant holds the property as Sc
curity for a debt he can have no cause
of complaint without a specific showing
that there will not be enough value left
after the proposed spoliation to satisfy the
debt?
THE compliments lien attaches as much
to that portion of the property which is to
be destroyed as to any other. The general
owner whose management of mortgaged
property is objected to by mortgag gee may
well urge that what he proposes to do
with said property will still leave ample
security But what right would a mere
wrong-doer have as against even a mort
gagee to destroy any portion of the prop
erty pledged.
The demurrer is overruled, the motion
to dissolve the injunction is denied and
commandments motion is al