The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-04-20

lures and the amount of profits after de-
Quoting all expenses; which statement
shall be made under the oath Of the OFF,
Ger whose duty IL shall be TO make the
same.
COUNSEL IN THE CASE.
ION the hearing before me the plaintiff
was represented by Messrs. William A.
Ketcham, Robert s. Taylor, Ferdinand
Winter and Roscoe o. Hawkins as his at
torneys, and the defendant was repre-
sented by John c. Williams, Lawrence
Maxwell, jr., and Samuel o. Pickens.
his attorneys. The evidence consists of
the books and records of the corporation
and the testimony of George C. Duy, John
Z. Cleland and Joseph T. Tanning,
corning the accounts and entries in them,
and William r. Harrison. All of the tes-
timony of the witnesses, with tables and
statements which were prepared from the
books by the witnesses, are herewith re-
turned into court; the testimony of the
witnesses being contained in two volumes
marked Exhibits A and b, and the tables
and statements being contained in a single
volume marked Exhibit G. The reference
TO me in this case is not for an accounting
only. IL requires me- to- find and determine
whether an account should be stated be-
tween the parties, and Ii also requires me
TO find and determine a just and proper
basis for the statement of an account be-
tween them, If any should be made
I'm the performance of these duties 1t is
necessary for me TO have an adequate UNI
Outstanding of the whole controversy be-
tween the parties; and the order OF refer
ence expressly provides that / shall find
and report all the facts that are involved
in 1t with my conclusions of law thereon.
The controversy has its origin In the
twenty-second and twenty-third sections
of the special charter, under and by which
the defendant was incorporated, and is
essentially a controversy over the con-
no o.
tons In overruling the demurrers to the
complaint and the reply to the third para
graph of the answer the Superior Court
rendered opinions which cover some of the
points that are involved in the construction
of the charter, but there Is further con-
troversy as to the precise meaning and APP
plication of these opinions. The primary
object in any construction of these sections
is to ascertain the intention of the Legis-
lature in the enactment of them. 1t is
impossible for me to ascertain the inten-
ton of the Legislature in the enactment
of particular words and phrases in these
sections without having previously ascer-
tanned the intention of the Legislature in
the enactment of them as whole. Its in
tention in the enactment of these sections
as whole pervades and dominates every
part of them. IL IL be my duty TO ascer-
tain the intention of the Legislature in
the enactment of any part of these sec
tions, it is equally my duty to ascertain
its intention in the enactment of them
as a whole; and the performance of that
duty. which involves an exercise of judi
cial functions, should be governed by those
rules of law and equity that have been
established by the weight of authority.
RULES CONSTRUCTION.
"a familiar rule of construction requires
that a charter, as far as it is grant of
powers and franchise should be construed
strictly against the grantee. and that all
doubts should be solved against such
grantee. Another rule of special stringency
is that an intention to grant immunity
from taxation, or exemption from the leg
islative ccutrol of tolls and freights. should
never be imputed to a Legislature If it be
possible to avoid doing so by any reason
able construction of the charter. GCovington
Turnpike Company VS.. Sanford, l64 u. >.
572, 5S7. $50, and cases cited.] These are gen.
eral rules for the construction of all char
tiers, and they are founded in public policy.
They are applied by the courts to the con-
struction of all charters because the pub
lie interests are, on the whole, protected
by a uniform and consistent application of
them. AS applied to the present case they
do not mean that the charter should be
construed one way If the corporation were
claiming an exemption from legislative con-
troll and another way if the State has a
pecuniary interest in conceding that 1t
has such an exemption. They do not mean
that in all suits where the State is a party
favor of the State, any more than they
mean that in all suits where a corpora
ton is a party every doubtful question
shall be solved against the corporation.
They relate to the subject matter of con-
trOversies and not TO the parties in them.
LAS applied to the case at bar these rules
mean that If reasonable construction of
Section % and % can be adopted which
avoids excludes any theory of an irrev
ocable grant of exemption from the 1egis-
lative control of tolls and freights for an
indefinite or any period of time, by the
State to the corporation, that construction
must be adopted In order to meet the re-
quirements of these rules 1t is wholly un-
necessary that any strained or unnatural
construction of the language that is used
in Sections % and % should be adopted,
and such construction of IL would be in
admissible. The most natural and obvious
construction that can be put upon the lam
guage of these sections fully satisfies the
requirements of these rules. Section % au-
thoriZes the corporation to regulate its
tolls and freights, and Section % provides
that the Legislature may regulate them on
the happening of the contingency and with
in the limits therein described, and pro-
vision is made in the latter section for
the disposition of any surplus that may
remain after such regulation Is made: and
that section also contains provision that
the regulation of tolls and freights by the
Legislature shall not reduce them below
the minimum fixed thereby, which, if con-
strued by itself and without reference to
a
tract which binds the State absolutely. AS
construed together these section mean
that the authority which is given the cor
poration in Section % is may be limited
under Section %; or. i'm other words, that
the corporation Is authorized to regulate
its tolls and freights until the Legislature
shall regulate them.
But the State contends that these Sec
lions constitute a contract whereby the
Legislature was prohibited from regula ting
the tolls and freights of the corporation
until the happening of the contingency
which is described in Section %, by rea-
son of a grant of exemption from the leg
islative control of tolls and freights until
| the happening of that contingency which
| forms a part Of the contract, and is the
| consideration for the liability upon which
| the present suit is instituted.
FURTHER INQUIRY NECESSARY.
"It is therefore necessary to make fur
| ther inquiry into the nature of the author
| ity which was given by Section % and the
| nature of the limitation which was placed
| upon that authority by Section %. The
| next question for present consideration is
| accordingly, the question whether the au-
| thority which is conferred by Section 2:
| and limited by Section % is an irrevocable
| grant of the power to regulate tolls and
| freights for an indefinite or any period OF
| time by the State to the corporation. II
| there be such a grant it must be found
| III Section %, for Section % is nothing more
| than a limitation upon the preceding grant
| and that is evidently the theory OF the
| complaint, as appears from the following
! allegation, namely: BY said charter said
l corporation was given the right to charge