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

precisely the same under that section as
they would have been without IL. with
or without that section the corporation
was authorized 10 regulate it's tolls and
freights until the State exercised its right
to regulate them. If there was any
abridgment or enlargement or modification
OF these rights OF the parties IL must have
been accomplished by an independent grant
or contract in Section %. and have shown
that such a grant or contract does not
exist therein. An express reservation of
the right of the State to regulate tolls and
frelghtS was unnecessary. III the right was
not surrendered IL was retained. And the
State does not specifically reserve a
right in Section 3D. as il does in Sections
80 and So and SO. but il assumes that a
right already exists without specific
reservation OF II. A general right OF regu-
lating the tolls and freights OF the corpora
ton was therefore retained by the State
and existed in il without the provision in
Section % concerning them, and that pro-
vision was really nothing more than a
special notice of an intention to exercise
that right under particular state of cir
cumstances, or that a particular state OF
circumstances would be regarded as an &C.
casion for the exercise of IT, One of the
functions of such provision In any view
of IL is TO give notice OF what the state
| may do i'm the exercise OF It's rights.
whether they are expressly retained or
retained by reason of not being surren-
dered; and ell other conceivable functions
of the provision in Section q concerning
tolls and freights being impossible or I'M
necessary the sole function that IL can
| effectively perform is the function OF CIV
ing such notice, and that, In my opinion.
| Is all that was intended by II. lSinking
| Fund Cases, % L. s., 200.
WHAT THE CONTRACT WAS.
1.-THE promise and undertaking of the cor
poration was that wherever the State by a
| legislative enactment exercised its right to
| regulate tolls and freights under the cir
| cumstances that were indicated by the
| special notice, and any balance of surplus
profits remained after paying expenses and
| reserving such proportion might be
necessary for future contingencies the cor
poration would pay such balance to the
| State, and either the minimum of regula-
| ton as fixed by Section % or the privileges
of the charter as whole was a legally
sufficient consideration for that promise
and undertaking. A reasonable regulation
| of tolls and freights might have been made
| by the State on any other occasion or I'M
der any other circumstances; IL might nave
regulated them at any time before the
dividends were equal TO the investment ana
| 10 per centum per annum thereon. or the
full sum was invested, or any dividends
were declared without placing the corpora
| ton under any pecuniary LIABILITY. us
| pecuniary liability upon such regulation
| was inseparable from the conditions that
| were specified in the notice and coulo arise
under those conditions only. If the regu-
lation by the State were deferred until
| those conditions existed there was an incl
dental and contingent liability on the part
1 of the corporation. otherwise there was
none whatever. But the regulation or tolls
| and freights by the State was not de-
pendent upon the circumstances or the con-
dition or upon any act or the corporation.
| The State could regulate them whenever
4 il chose to do so, and the corporation Is
| not legally chargeable with any response
| bility for the exercise or want OF exercise
| of the legislative will, even If the consid-
| erations which influenced its exercise or
| want of exercise were renewable py the
| courts.
! including the pledge of the State that IT
| would not reduce tolls and freights below
| the minimum which was fixed therein, are,
| when construed with the latter clause OF
| Section IS, inconsistent with any theory OF
an irrepealable contract under numerous
| decisions of the Supreme Court OF the
United States. 1t held in Tomiinson VS.
/ Jessup, 10 Wall, Asa, 459, that SUCH reser-
| walton of the power to alter. amend or re-
peal the charter is contained in Sec
| ton SO affects the entire relation between
| the State and the corporation and places
under legislative control all rights, privi-
| leges and immunities derived by its charter
| directly from the State and this case was
| affirmed and followed late as the case
| of Charleston VS.. Jessup, 15i Il. s., 5SZ, as
| well as in many intermediate cases, and
| its doctrine may be regarded as settleo
| law. RAILROAD Co. VS.. Maine, 10 L: o.
499; Water Co. VS.. Clark. lab U. S., l; Rail-
1 =.
cases cited; Sinking Fund Cases, supral
A SECTION REPEALED.
| Section So was repealed in 1s4s and con-
seauently there remains in Section q ar
| irreparable contract with the State by
which il bound itself it would not reduce
the tolls and freights below the minimum
fixed thereby, in these words: But the
corporation shall not be compelled by Law
to reduce the tolls and freights so that
minimum of Is per centum per annum can
not be made and that provision, in my
opinion, is the only irrepealable CONTRACT
concerning the regulation of tolls and
freights in Sections 2 and %. IL, there
| FORE my search for the legislative intent
| i'm these provisions of the charter were no.
| restricted by the ruling and opinions o.
| the Superior Court. should find that th'
| State did not irrevocably part with IL:
power to make reasonable regulations con
corning tolls and freights for an indefinite
or any period of time in the origial char
| ter: that by the repeal of Section 80 In ls4
ii made its minimum of regulation as des
| ignated in Section % an irrepealable con
| tract: and that with this exception there
is not any irrepealable contract concerning
the regulation of tolls and freights In tn
| charter.
decided that there is such special con
tract between the parties in the provisions
| of Sections % and %, upon which the pres
ent action Is maintainable, II becomes m!
duty to find and determine whether. upoi
| that view of these provisions of the char
ter, the facts warrant recovery. In I'M
| discharge of that duty IL becomes neces
| sary as a preliminary of such an investiga
ton to ascertain what is meant by tn
| words the full sum invested in Section
o. 1t was conceded on the argument be
| fore me that these words are synonymou
| with the words the capital employed,
| which are subsequently used in that sec
tion anu | think there cannot be any Sc
| rious doubt on that point. In other words
| each of these phrases may be taken as
| definition of the other; the full sum in
| vested meaning the capital employed,
| and the capital employed meaning tn
| full sum invested In this view of thes
| phrases the definitions of them, which ar
furnished by the charter itself, are exactl
In accordance with both the legal and tn
| popular definitions of them. Their ought n
| popular definitions Of them. There ough
| not to be any controversy as to what
| meant by the full sum invested. TIL
| meaning of these words Is as plain a
| sum invested is the whole investment b
| the corporation in its plant and property
1t is impossible to make that phrase mea
| ANYTHING else without the Interpolation o
| other words. Additional light is throw
| upon the meaning of that phrase by tn
| subsequent phrase the capital employed
The legal meaning of the word capita
| has been settled in SO many adjudication
| and is furnished by so many textbooks an
| dictionaries that IL is impossible TO cit
| all of them In People VS.. Commissioners
| said: The word Capital is unambiguous
| III signifies the actual estate, whether 4