Adams Express Co. v. The State
| Decision Date | 26 June 1903 |
| Docket Number | 19,934 |
| Parties | Adams Express Company v. The State |
| Court | Indiana Supreme Court |
Rehearing Denied October 28, 1903.
From Jackson Circuit Court; T. B. Buskirk, Judge.
Action by the State against the Adams Express Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
O. H Montgomery, Albert Baker and Edward Daniels, for appellant.
C. W Miller, Attorney-General, W. L. Taylor, S. M. Hudson, T. M. Honan, F. M. Trissal, J. H. Shea, T. J. Brooks and S. R. Hamill, for State.
This action was brought in the Jackson Circuit Court by the prosecuting attorney of that judicial circuit to recover from the appellants the penalty of $ 500 given by the act of March 7, 1901 (Acts 1901, p. 149, §§ 3312b-3312f Burns 1901), for an alleged violation of one of the provisions of the statute by the appellants. The defendants were described in the complaint as a copartnership and association of persons, whose names were unknown to the informant, engaged in business in said county as an express company. The specific charge against the defendants was that, at their office and agency at the city of Seymour, in said county, on May 29, 1901, they refused to receive from the Southern Indiana Express Company a certain package of merchandise and to complete the transportation and delivery of the same over their line from Seymour to Indianapolis without prepayment of the charge therefor, although at said date and agency said Adams Express Company, and other named express companies doing business at said place, by custom and usage among themselves, received such packages from each other for carriage, and paid the charges of each preceding carrier, and completed the carriage of all such packages, the delivering carrier collecting the full charges and retaining them. It is alleged that, by refusing to receive the package and pay the accrued charges, the defendants denied to the Southern Indiana Express Company equal terms, facilities, accommodations, and usages in the receipt, carriage, continuance of carriage, and delivery of property usually carried by express companies, and thereby unlawfully discriminated against the said Southern Indiana Express Company, and became liable to forfeit and pay to the State the penalty of $ 500 named in the statute.
The defendants entered a special appearance to the action, and moved to set aside the service of the summons, for the reason that the defendants were sued as a copartnership, and that service of the writ was made only upon George S. Clark, agent of the defendants, and did not show that Clark was one of the copartners, such service not being authorized in this action. The motion to set aside the service was overruled. The defendants then moved to set aside the summons on the ground that the names of the defendants were not set out in the complaint, and that the clerk of the court was not authorized to issue the writ in the form adopted. This motion also was overruled. The defendants thereupon entered a full appearance, and demurred to the complaint upon two grounds: Want of jurisdiction of the persons of the defendants, and the insufficiency of the facts stated to constitute a cause of action. The demurrer was overruled. An answer in five paragraphs was filed, the first paragraph being a general denial.
The second paragraph of answer stated, in substance, that the defendants conducted their business with the other express companies mentioned in the complaint under special traffic agreements, and that the Southern Indiana Express Company did not offer to pay the charges on the package offered by it for carriage, or to guarantee the payment of defendants' charges, or the repayment of the accrued charges if they should be paid by the defendants, nor did said Southern Indiana Express Company offer to put in force between it and the defendants an agreement as to through rating or express charges, and the division thereof, similar to the arrangements existing between the defendants and said other express companies. This paragraph concluded with the averment that if, under the act of March 7, 1901, supra, the defendants could be required to receive the said package, pay the accrued charges for carriage thereof, and carry the package to its destination, the statute was invalid, in that it contravened § 8 of article 1, and § 1 of the fourteenth amendment of the Constitution of the United States, and §§ 21 and 23 of article 1 of the Constitution of the State of Indiana.
The third paragraph of defendants' answer alleged that defendants were a joint-stock association or copartnership, not organized under the laws of Indiana, usually called an express company, and that defendants were regularly engaged, and had been since March 29, 1879, continuously, in the business of carrying money and property over and upon railroads in the State of Indiana, and agreeing to receive and receiving compensation therefor; that they were so engaged in said State before said date, when an Indiana statute in relation to foreign express companies (§§ 3306-3308 Burns 1901), whose title it quotes, was approved; that upon the taking effect of said act, and long before May 16, 1901, when the said Indiana act of that year took effect, defendants duly and fully complied with § 2 of said act of 1879 (Acts 1879, p. 146) by executing and filing in the office of the recorder of said Jackson county the "agreement" mentioned in that section, authorizing process for defendants to be served upon their express agents, and authorizing judgment thereon in personam against the defendant copartnership in such actions, and in the manner as is provided in said section; that continuously since the filing of said agreement defendant had, in pursuance of the rights and privileges secured to defendant by said act of 1879, enjoyed such rights and privileges in the transaction of defendants' express carrier business in Indiana and in said Jackson county; that on the 15th day of May, 1901, at midnight of said day, the Secretary of State of the State of Indiana certified as then in force said Indiana statute so approved March 7, 1901, whose title the answer quotes; that defendants' acceptance of the provisions of said act of March 29, 1879, became a contract between the defendants and the State of Indiana, which was, on May 15, 1901, and still is, in force, unless said act of March 7, 1901, which attempted a repeal of said act of 1879, and attempted to annex conditions to defendants' right and privilege to transact their express carrier business in Indiana different from those defined and authorized by the said act of 1879, be a valid statute of Indiana; that the right of the State to have and maintain this action rests wholly upon, and does not exist without, the provisions of said act of 1901; that that act is null and void because, under the facts pleaded, it violates § 10 of article 1 of the Constitution of the United States, in that it impairs the obligation of said contract between the defendants and the State of Indiana.
The fourth paragraph of answer averred that the defendants were a copartnership, an association of persons, usually called an express company, and had been for five years in the business of carrying money and property over and upon railroads operated in Indiana and in said Jackson county, and receiving, and agreeing to receive, compensation for such carriage; that the Southern Indiana Express Company did tender to the defendants the express package mentioned in the complaint for continuance of its carriage from said city of Seymour to destination, but that said tendering company did not pay or offer to pay defendants' charges for such carriage, and did demand from these defendants said tendering company's accrued charges for carrying said package to Seymour, and thereupon defendants declined to receive and carry said package and to advance said accrued charges; that said Southern Indiana Express Company was then a corporation organized and existing under the laws of the State of Indiana, but was not a responsible express company, nor an express company of any kind, because there never had been a statute of Indiana authorizing the incorporation of express companies; that said company, by its certificate of incorporation and articles of association, declared itself to be organized "in pursuance of the statutes of Indiana relating to voluntary associations and corporations," which articles were filed June 22, 1898, in the office of the Secretary of State of the State of Indiana, and there was then but one statute authorizing the incorporation of "forwarding" companies, viz., subsection 15, § 1, of the voluntary association act of 1891, reading: that said company was incorporated in pursuance of said subsection, and not otherwise; that it, in assuming to exercise the franchise of an express company common carrier, and transact an express carrier business, especially touching the express package mentioned in the complaint, acted wholly ultra vires its charter.
The fifth paragraph of defendants' answer averred that defendants were a copartnership composed of natural persons that the State's right, if any, to have and maintain this action rests wholly upon § 4 of the Indiana statute of March 7, 1901, whose title it quotes, and, without said section, the State can not maintain the action; that the penalty prescribed in said section, and the offense it denounces, are respectively of such character that any judicial proceeding in which a defendant might be convicted of the offense, and...
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