The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-10-29
VIGOROUS LANGUAGE USED
COMPANY RELIES MUCH UPON 4 DE-
CIsION RENDERED. IN 1875.
Attention Called to the "FOur CRU
ciaI Periods" i'm the COmpanYs
Fifty Years of Life.

& INDIANAPOLIS Railroad Company. in that
companys appeal from a judgment rem
dered ty Judge Carter, of the Superior
Court. against il i'm favor of the State of
Indiana in the sum of s9139O5.01.
The brief enumerates forty-eight separate
assignments of error for the commission
of which it asks that the judgment be re-
versed. These errors pertain to Judge Car
ter's rulings on the States demurrers To
the different paragraphs of the railroad
cOmpanys answer; also to the rulings ON
the railroad company's exceptions TO the
report Of Noble c. Butler. master, and to
the lower courts finding against the COM
pany.
The action grew out Of a demand made
by former Attorney General Ketcham upon
the railroad company for all of its net
receipts since Jan. Il. 1873. so far as such
receipts exceeded 10 per cent. of the capital
employed in the construction of the road
after it's earnings equaled the cost of con-
structiOn, together with 10 per cent there
on. as specified I'm the charter granted to
the road.
The railroad company has relied much
upon the suit of the State on the relation of
Denny, attorney general against the rail-
Superior Court. in which the defendants
demurrer TO the complaint was sustained
and final judgment rendered. which was
later affirmed by the Supreme Court. The
brief filed yesterday contends that the
action of 1875 is an effectual bar TO the
States present attempt to collect money
from the railroad company.
Among the numerous points discussed by
the brief Is one that alleges negligence on
the part of the State in attempting to col
lect what was believed To be due it. The
brief admits that a charge of neglect does
not hold good against the State in its SOW
ereign capacity, but asserts that when the
State enters into a commercial transaction
such as this it divests itself OF it's sover
eighty and is then open to charges of neg
lect the same an individual would be.
FOUR CRUCIAL PERIODS.
The brief recites that during the fifty
years of its existence, from 1S47 to 1891. the
Vandalia Railroad Company passed
through four crucial periods. In 1851 and
1868 it was threatened with destruction
from financial reverses. In 1873 and 1874
the State brought against it a quo war
ranto proceeding asking the forfeiture of
it's charter because it had not paid into the
State treasury for use of the school fund
a per cent. of it's earnings, as required by
it's charter In this action, says the brief.
the court held that nothing was due the
State. and then the road was allowed to
after it had gone into the hands of re-
ceiver. the State filed the present claim
against IL. based on an entirely new law
enacted by the Legislature of 1897. In it's
attack upon this law the brief says:
Legislation more curious than this was
never submitted to the consideration of a
court. The company by express legislative
authority had surrendered its charter in
1873 The Legislature of 1897 in amending
the law under which the appellants char
ter had been surrendered declared and
foI hot oh ,Iov. bod
made. The companys charter was not sub
ject TO alteration, amendment or repeal.
The Legislature of 1897 enacted that, not
WithStanding the acceptance by the COM
pany of the general railroad law of 1852,
any and all provisions of its charter might
be amended, revised, repealed or added to-
Section % OF the original charter required
the company to account to the State for
only such profits might accrue after the
Legislature had regulated its tolls. and the
Legislature was not permitted to regulate
its tolls until the aggregate amount of divi-
dends declared had equaled the full sum
invested, with 10 per centum per annum
thereon. The Legislature of 1897. nOtwith-
standing the surrender of this charter in
1873 and Notwithstanding there was no
right 10 amend il. amended Section % in
such way that the company was required
TO account to the State for its profits from
the beginning. regardless of any legislative
regulation of its tolls and freghts. and per-
mitted this legislative regulation to be
made when the aggregate amount of divi-
dendS earned mot declared) amounted to
the full sum invested and 10 per cent per
annum thereon. Going still further the
Legislature of 1897 appropriated for the use
of common schools all of the profits of the
company which might be found due to the
State upon a certain basis for accounting
fixed by the law OF March 4. 1897. The basis
thus fixed was not in any manner war
ranted by the original Section % nor even
by the amendment thereof the oath of
February, 1897. In stating the account be-
w IN the parties under this act of March
4; 1872, the company would be credited with
the full sum invested together with interest
thereon at the rate OF 10 per centum per an
mum. and would be charged with the total
receipts arising from the operation of the
road. When those receipts equaled the sum
invested. with 10 per cent. per annum, an
other account would begin. The companv
would be charged with total receipts until
Jan Ia, 1873, would then he credited with
ID per cent. per annum upon the capital
employed and the balance would represent
the amount due the State. 1t will be OBJ
served that In stating such an account
neither dividends declared nor net earn
ings would be considered. IL is the total
receipts of the company up 10 and incIud-
ing the 18th day of January. 1873. which the
law specifies shall be charged against ths
company. From the aggregate Of the total
amount received between the date when
the total receipts eQualed the amount in
vested and 10 per cent. per annum is TO be
deducted only Is per cent. per annum upon
the capital used. and no allowance what
ever is TO be made as a reserve for future
contingencies.
NO justification OF any Of this legislation
in 1897 is possible None has ever been at
tempted. The bare statement of il is sufi-
Client to show how obnoxious il is to those
provisions of the Constitution of the United
states TO which reference has already been
made
VIGOROUS DENCNCIATION
The brief concludes with a vigorous de-
nunciation of the method by which the case
was tried in the court below. THE merits
of this cause says the brief. were not
fairly tried and determined i'm the court be-
low. and ii concludes thus:
"A grave and far-reaching error was
committed when the demurrer to the COM
plant was overruled. a theory of the case
was then adopted which was palpably and
wholly wrong. construction was put
upon appellants contract with the State
which was in plain violation of all rules
considered binding upon courts i'm the inter-
probation or statutes. Then errors followed
fast treading upon each others heel In
sustaining demurrers 10 the answers IL was
held that the action was founded upon a
contract in writing. and that the twenty
years statute of limitations only applied
and that the State was not subject To the
doctrine OF laches and acquiescence The
case made by the complaint was submitted
for decision and an entirely different case
was decided. The undisputed facts show
ing former adjudication Of all the mat
tiers presented by the complaint were en-
tirely disregarded
In fine the record is full of errors both