Chicago And Eastern Illinois Railroad Company v. State ex rel. Ketcham

• Decision Date: 16 November 1898
• Docket Number: 18,618
• Citation: 51 N.E. 924,153 Ind. 134
• Parties: Chicago and Eastern Illinois Railroad Company v. The State, ex rel. William A. Ketcham, Attorney-General
• Court: Indiana Supreme Court

51 N.E. 924

153 Ind. 134

Chicago and Eastern Illinois Railroad Company v. The State, ex rel. William A. Ketcham, Attorney-General

No. 18,618

Supreme Court of Indiana

November 16, 1898

Rehearing Denied Oct. 3, 1899.

From the Marion Circuit Court.

Affirmed.

W. H Lyford and A. C. Harris, for appellant.

William L. Taylor, Attorney-General, William A. Ketcham, A. G. Smith and C. A. Korbly, for State.

OPINION

Howard, J.

By an act approved March 4, 1891 (Acts 1891, p. 84, § 7631 Burns 1894), it was provided, amongst other things, that the Secretary of State should collect from certain corporations certain named fees, for the benefit of the State, as follows: First, for filing articles of incorporation; second, for filing a certificate of increase of capital stock; and, third, for filing "the articles of agreement, or a certified copy or duplicate thereof, of any consolidation of corporations having a capital stock." It was there further provided that "said articles of agreement of consolidations shall be treated as the articles of incorporation of the new consolidated corporations created by such articles of agreements of consolidation," and that the fees for filing such agreements should be the same in each case as for filing articles of incorporation "of a corporation having the same amount of capital stock as is provided for by the articles of agreement of consolidation for the new consolidated corporation, created by any such articles of agreement of consolidation."

By another act, approved March 9, 1891 (Acts 1891, p. 392, § 3424 Burns 1894), it was provided, in addition, " That all persons, companies, corporations and associations hereafter desiring to incorporate under the laws of the State of Indiana, and who are not now by law required to do so, shall be and are hereby required to file with the Secretary of State certified copies or duplicates of their articles of incorporation or association, and no such corporation or association shall be deemed and held to be legally incorporated until the provisions of this act shall have been complied with."

On the 7th day of June, 1894, the appellant, which is a consolidated corporation, formed as such on June 6, 1894, and composed of an Illinois and an Indiana railroad company, appeared, by its agent, at the office of the Secretary of State, and tendered for filing its articles of agreement of consolidation; the capital stock therein fixed being in the sum of $ 25,000,000. On receiving information that the fee for filing the articles was $ 25,000 the agent withdrew the papers; and the company thereafter declined to file its articles of agreement, and has hitherto failed to file them.

On the theory that the agent of the company had placed the articles of agreement in the hands of the Secretary of State for filing, and thereafter, when informed of the amount of the fee, had wrongfully withdrawn them, the State, alleging in effect that the articles had been filed, brought suit for the unpaid fee of $ 25,000. This case was decided against the State, it being found and held by the court that the papers were not in fact placed on file. State v. Chicago, etc., R. Co., 145 Ind. 229, 43 N.E. 226. "The refusal of the agent to pay the legal fee demanded," said the court in that case, "prevented the filing of the document, and left the company in the same condition as though the transaction, or offer to file, had not taken place."

Afterwards, by an act approved March 11, 1895 (Acts 1895, p. 255, § 3001a, Horner 1897), § 1 of the act of March 9, 1891, supra, was amended to read as follows: "All persons, corporations, companies and associations desiring to incorporate under the laws of the State of Indiana, or desiring to enter into any agreement of consolidation of the interests, rights and powers of two or more existing corporations, and who are not now by law required to do so, shall be, and are, hereby required to file with the Secretary of State certified copies or duplicates of their articles of incorporation or association or of consolidation, and no such corporation, or association, or consolidation of corporations shall be deemed and held to be legally incorporated or consolidated until the provisions of this act shall have been complied with, and until such time they shall have no right or authority to do business within the State of Indiana, and any contract made or entered into by or with them under any pretended corporate or consolidated name shall be utterly void. In case any such pretended corporation, association or consolidation of corporation shall do or attempt to do any business within the State of Indiana, without having first filed its articles of incorporation or consolidation, or copies thereof with the Secretary of State, and having paid the fee therefor, as now provided by law, the State shall, in addition to other remedies now provided by law, have the right to proceed against such pretended corporation or consolidation of corporations by suit in any court of competent jurisdiction for the recovery of any fee which would be due under the provisions of this act, the same as if their articles of incorporations or consolidation had been filed and any such court shall have the power to compel the filing of such articles. The provisions of this act shall also apply to all corporations, associations or consolidated companies now doing business in this State, and which have heretofore entered into articles of incorporation, or consolidation, but have failed, or refused, to file the same, or copies thereof, as required by the act of March 9, 1891, of which this is amendatory, and to pay the fees required by law."

On January 21, 1897, the State, on the relation of the Attorney-General, and by virtue of the authority given by the acts of March 4 and March 9, 1891, supra, invoking also the aid of the additional remedy conferred by the act of 1895, supra,--began this action to require the appellant to file its said articles of incorporation and consolidation, and to pay the fee prescribed therefor, and asking in addition that the corporation be restrained from doing business as such until such filing and payment should be made. Judgment was rendered in accordance with the prayer of the complaint, and this appeal followed.

Counsel for appellant first urge the insufficiency of the complaint. Under this head the three acts of March 4, 1891, March 9, 1891, and March 11, 1895, are taken up separately; and it is argued that there could be no right of recovery, as against appellant, under any one of those acts. The argument so made is a specious one, even as shown in appellant's own brief, in which it is said, citing Doe v. Avaline, 8 Ind. 6, that: "Where two or more laws are passed at different times, and all relate to the same subject-matter, although one may be an amendment of the other, or may even repeal the other, they must all be construed together, and the court is not at liberty to presume that the legislature intended to give different meanings to the same words in different statutes which are in pari materia." To this may be added that, where the legislature expressly states the meaning which is to be given to a term used in an act, that meaning must be given to such term as so used.

In considering the sufficiency of the complaint, we must therefore construe together, and not separately, the three acts, supra, upon which the complaint is based. In the third specification of § 1 of the earliest of these acts (that of March 4, 1891), as we have already seen, the legislature plainly expressed its intention that, for the purposes of filing and collection of fees therefor, "articles of agreement of consolidation shall be treated as the articles of incorporation of the new consolidated corporations," and that fees for filing such articles of consolidation shall be the same as for filing the articles of a corporation having the same amount of capital stock "as is provided for by the articles of agreement of consolidation for the new consolidated corporation." Acts 1891, p. 84. Words could hardly be clearer to show that in all three of the acts, which must be treated as in pari materia, the term "corporation" is to be construed as including also consolidation of corporations, and that a consolidation is but a new corporation formed out of two or more preexisting corporations. All therefore which is so learnedly said by counsel as to the distinction between corporations and consolidations of corporations is of no effect here. So far as concerns the filing of articles provided for in the acts under consideration, a consolidation of two or more corporations is to be treated as simply a corporation.

In this connection may also be noticed the very inconsistent contention that appellant is not in fact a consolidated corporation, but that the Indiana corporation, the Coal Railway Company, has been merely merged into the Illinois corporation, the appellant railroad company. This is evidently an afterthought, and quite out of harmony with the form and substance of the articles themselves, whose very language shows them to be a plain, ordinary and unambiguous agreement of consolidation. Averments in appellant's answer are to the same effect notwithstanding the use of the word merger: "It was deemed proper and lawful, and it was proper and lawful, that the legal title of all the property of said Chicago & Indiana Coal Railway Company should be vested in this defendant by the formal consolidation of said companies, and the merging of the property, rights, and franchises of the said Chicago and Indiana Coal Railway Company into and with the property, rights, and franchises of the defendant, which consolidation and merger were duly authorized by the laws of the states of...