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

question for themselves, as we'll as the
further question whether the contract is
protected by the constitutional provision
against any impairment of the obligation
of IL by the State. Mobile & Ohio Rail-
road Company VS.. Tennessee, 153 L. s., 4So-
493 and ca ses cited) The decisions of the
Supreme Court of the United States in de-
termining whether any particular provi-
sion of charter constitutes special con-
tract between the State and the corpora
ton, irrespective of that sense in which
the whole charter is regarded as con-
tract, are therefore binding on the State
courts, and 1t is important that due con-
sideration should be given them
SOME OTHER AUTHORITIES.
'In Stone VS.. Farmers Loan and Trust
Company, GIG L. s., 307-325) the corpora
ton was authorized to fix, regulate and
receive the tolls and charges by them to be
received for transportation of persons or
property on their railroad, ETC. In Stone
VS.. Illinois Central Railroad Company, GIG
u. s., 347-35D, the charter provided that
the president and directors be and they are
hereby authorized 10 adopt and establish
such tariff of charges for the transporta-
ton of persons and property as they may
think proper, and the same to alter and
change at pleasure In Chicago, Milwaukee
& st. Paul Railway Company VS.. Mime
sofa, Q34 L. s., 4lS-453), il was provided by
the charter that the directors of the cor
poration should have power to make all
needful rules. regulations and bylaws.
touching the rates of toll and the manner
of collecting the same
'Other cases of a similar character might
be cited. In all of them the Supreme Court
of the United States held that these pro-
visions are not such contracts as are pro-
tected by the constitutional provision
against any impairment of the obligation of
contracts by the State, or, In other words,
that they are not contracts at all, or any
r
mission TO do the things that are mentioned
therein at the will and pleasure of the
State. and until such time as ii may see
fit to withdraw or revoke the same. In
Pennsylvania Company VS.. Miller, Q32 u.
s., IS, $3.50, where similar provisions were
under consideration by the Supreme Court.
1t said that the corporation took its orig
lndl charter subject to the general law or
the State. and to such changes as might
be made in such general law, and subject
TO future constitutional provisions or future
general legislation, since there was no
previous contract with the defendant, ex-
empting it from liability to such future
general legislation in respect OF the subject
emption claimed from future general legis-
latiOn, either by constitutional provision
or by act of the Legislature. be admitted
to exist, unless ii is expressly given, or
unless ii follows by an implication equally
clear with express words Georgia Rail-
road and Banking Company VS.. Smith.
12S L. s., 14-1S2; City of Indianapolis VS..
Navin. Isl Ind. 1918. And in Covington
VS.. Kentucky 173 u. s.. 23l-23y, the SUI
preme Court said, concerning the sur
render of another power OF sovereignty
which is classified in Covington Turnpike
Company VS.. Sanford, supra, with the
power of regulating tolls and freights-one
as being equally important with the other.
and both as being governed by the same
rules of law: Before a neutrality-suspicious.
ly one relating to taxation-shouid be held
to be irrepealable. or not subject TO amend
Tent, an intent not to repeal or amend
must be SO directly or Enthusiastically ex-
pressed as to leave no room for doubt;
otherwise, the intent is not plainly ex-
pressed. 1t is not so expressed when the
existence Of the intent arises only from in
ference or conjecture
1.-The sole difference between the provi-
sions which have quoted from these other
charters and The provisions of the charter
which is under consideration here is i'm that
part of Section %. which relates to the pos
sible exercise by the State of its right to
regulate tolls and freights upon the con-
tingency and within the limits that are
specified therein. But that Is, under the
authority which was given in Section % in
the nature of condition subsequent and
does not purport to be anything more. II
the words in which that authority is given
In Section % are not sufficient to constitute
an irrevocable grant of exemption from
legislative control over tolls and freight
for an indefinite or any period of time. the
words i'm which that authority is limited in
Section q are clearly insufficient to convert
IL into such grant. a naked authority in
Section y does not. upon the conditional
reservation of 1T in Section %. thereby be-
come an frrevOcaDle grant or sovereignty.
condition subsequent renders an estate or
an authority defeasible, but ii does not en-
large an estate or an authority in any way.
1t may discharge promise, but 1t does not
work any change in the promise itself AT
agreement for the revocation of revoca-
bic license under particlar state of cir
cumstances does not render it otherwise
hi An nl,,fn IT,,
% is inconsistent and irreconcilable with a
mere license in Section %. If the naked au-
thority in Section % becomes an irreyOcablt
grant in Section %. the provisions of the
former section are rendered absolutely
meaningless and are practically eliminated
from the charter; and such a construction
of these sections is therefore inadmisSble
whether they are considered as license OF
violates that elementary rule of construc
ton which requires that effect shall bt
given every part of an instrument or q
legislative enactment.
WHAT SECTION ''23' MEANS.
1.-THE language of Section g. either in
connection with Section %. or independent
ly of it, does not expressly or by unavoid.
able implication manifest clear and un.
! mistakable intention the part of the
Legislature to surrender its control. owe,
tolls and freights for an indefinite or any
period of time to the corporation indie
pendently of Section %, it simply provides
that whenever dividends have accumulated
as described therein the State may, by fur
| Their legislation, regulate the tolls ant
freights of the corporation in particular
way. The legal inference from the Ian
guage of that provision is that, in the
| meantime, and until the State should regu
+! late the tolls and freights of the corpora
| ton, the mutual rights of the parties in
| that respect were to remain and continu,
| as they existed under the common Law
when that provision was adopted. AT anc
since that time the corporation had right
without any provision in the charter con
| corning tolls and freights, under the com
| mon law and as an incident of other pro
visions in the charter, to charge reasona
bic prices for its services. lStone VS.
| Farmers Loan and Trust Company, su
| pra.l Under the common law the Stat,
| had right to control these prices within
| reasonable limits. The right of the cor
poration was subordinate to the right o
| the State. IMunn VS.. Illinois, "a u. s.. 49,
| The provisions of Sections % and % wer
simply decaratory of the common law
and they did not change the common Law
| except as they fixed the minimum of regu
| lation by the State, ami legally sufficien
| consideration for that provision was tn
| consideration for the charter as a who'll
| and for every other part of 1t which was
| according to the case of Dartmouth Col
| lege VS.. Woodward, Wheat ST. the pub
| lie benefit. or the promise and undertaken;
| of the corporation as it is described by M
| on Page II. The State did not, by an ex
| press reservation of its right to interior
| with the corporate regulation of tolls an,
| freights under special circumstances and Il
| particular way, implicitly surrender 1t
general right of interference Herewith un
| der all other circumstances and in ever