Cincinnati, Hamilton And Indianapolis Railroad Company v. Clifford
| Decision Date | 28 February 1888 |
| Docket Number | 12,461 |
| Citation | 15 N.E. 524,113 Ind. 460 |
| Parties | The Cincinnati, Hamilton and Indianapolis Railroad Company v. Clifford |
| Court | Indiana Supreme Court |
From the Fayette Circuit Court.
Judgment reversed, with instructions to sustain the motion for a venire de novo.
R. D Marshall and W. C. Forrey, for appellant.
R Conner and H. L. Frost, for appellee.
The appellee in his complaint asserts a right to the possession of one hundred and twenty acres of land, and avers that the appellant has possession of it without right. The complaint seeks possession of the land, and not compensation, except in so far as damages are an incident of the right of possession. The action must, therefore, be treated as purely a possessory one, and on that theory we must examine and decide all the questions presented by the record.
The second paragraph of the answer of the appellant alleges that, on the 11th day of February, 1848, the General Assembly passed an act incorporating the Junction Railroad Company and authorizing it to construct a railroad from Indianapolis, Indiana, to Hamilton, Ohio; that it located its road through the appellee's land soon after the act was passed, and, pursuant to the power conferred by its charter, took a strip of ground one hundred feet in width; that the Junction Railroad Company and the appellant, as its successor, have since been in possession; that the appellee had full knowledge of the entry and seizure, and did not file any claim for damages, as required by the charter of the corporation. To this answer the appellee replied these facts: The General Assembly, on the 15th day of February, 1848, passed an act requiring the Junction Railroad Company to commence the construction of its railroad within four years from that date, and to complete it within ten. Neither the Junction Railroad Company nor the appellant, as its successor, did begin the construction of the railroad within ten years. The entry was not made until 1867. No compensation was paid the appellee by either of the corporations.
The contention of appellant's counsel is, that the reply is bad for the reason that the amendatory act of February 15th, 1848, is in conflict with the Constitution.
The general rule undoubtedly is, that, after vested rights have been acquired, the charter of a corporation can not be so amended as to impair those rights, unless the power to amend or repeal is expressly reserved. The rule that a charter granted to a private corporation is a contract has a firm place in our jurisprudence, and to that rule courts must yield. But, in stating the general rule and affirming its validity, we do not decide the question which here faces us. An element enters here not usually found in the adjudged cases. The original act and the amendatory act were passed at the same session of the General Assembly. An interval of only four days elapsed between the adoption of the original act and the adoption of the amendatory act. There was no acceptance of the original act, and no rights were, so far as the record discloses, acquired under it prior to the passage of the act amending it.
Our conclusion upon this point is, that where the original and amendatory acts are both passed at the same session, with an interval of four days elapsing between them, and there is no acceptance of the provisions of the original act, nor any rights acquired under them during that interval, the amendatory act is valid.
The rule forbidding the amendment or repeal of charters granted to private corporations, rests upon the theory that vested rights will be destroyed and the obligations of a contract impaired by the amendment or repeal. At the foundation of the rule is the assumption that the charter is a contract. With the fall of this assumption falls the rule. This assumption must fall unless there be present the elements of a contract. The absence of these elements saps the foundation which alone gives support to the rule. In this case those elements are absent.
Much older and quite as well settled as the rule prohibiting the repeal of charters, is the rule that private organizations can not be compelled to accept a charter. No association can be erected into a private corporation by the act of the Legislature alone. Public corporations may be erected by the Legislature without the consent of the corporators; private corporations can not be so created. Acts constituting an acceptance must be performed before the act of the Legislature is transformed into a contract. Until there is an acceptance, either by express words or by conduct, the act of the Legislature is nothing more than a mere proposition.
Through all the law of contracts runs the principle that a proposition may be modified or withdrawn before it is accepted. This principle applies to propositions from the sovereign as well as from the citizen. In support of our conclusion we refer to State, ex rel., v. Dawson, 16 Ind. 40; Field Corp., section 30.
We are, however, unable to find any principle upon which the appellee can take advantage of the failure of the corporation to commence or complete its road within the time prescribed by the act of February 15th, 1848. The lapse of time and the intervention of other rights than those of the corporation, make it doubtful whether the State could take away the corporate rights of the successor of the original corporation; but however this may be, a private citizen can not accomplish that object by a possessory action. It was more than thirty years after the expiration of the time fixed for the completion of the railroad before the right of the appellant was assailed. We are entirely clear that the appellee, at least, can not avail himself of the failure of the corporation to complete its railroad, and wrest from it the possession of the strip of land occupied by it for the purpose of maintaining and operating its railroad. Even had there been no acquiescence on the part of the appellee or the State, the former could not have availed himself of the failure of the corporation to perform its duty. That duty was owing to the State, and not to individuals, and the State alone has a right to enforce that duty or sue for its breach. It would be subversive of principle and productive of great evil to permit private citizens to recover possession of land, and thus break the line of a railroad engaged in the public service, upon the ground that the corporation had not done what the law required it to do, unless what it was required to do affected private rights. Principle and authority are against the appellee upon this point. Logan v. Vernon, etc., R. R. Co., 90 Ind. 552, and cases cited; Jussen v. Board, etc., 95 Ind. 567.
It would be strange, indeed, if a citizen could bring an action in ejectment, and, upon the ground that the corporation had not performed a duty due from it to the State, wrest from it a strip of ground forming part of its roadway, and acquired by it under color of authority conferred by its charter.
Our argument, it is true, proceeds upon the assumption that the duty enjoined by the amendatory act was owing to the State; but the assumption is so plainly just that it can not be controverted. All that need be done to establish it is to affirm, what no one will deny, that, so far as concerned any private rights, except those of the corporation, the Legislature might at any time have relieved the corporation from the duty, enjoined by that act, of completing its road within ten years from the passage of the law. If it could do this, then it is perfectly clear that no citizen had any private right that could constitute the foundation of an action, for, if he had, the Legislature could not take it from him. Doubtless, private rights may be granted land-owners by a corporate charter, but no such rights are created by the amendatory act of February 15th, 1848.
The reply is not made good by the allegation that neither the appellant nor its predecessor began the construction of a railroad within four years after the passage of the amendatory act; nor is it made good by the allegation that the railroad was not constructed within ten years from that time. But we think it may be sustained on other grounds.
The answer pleads as a defence the failure of the appellee to demand compensation in the manner prescribed by the charter of the Junction Railroad Company. This is the theory of the pleading. There is no claim of license, nor any claim that compensation was paid; the sole claim is, that there can be no recovery because the land-owner did not file his claim for compensation with the secretary of the corporation, as the special charter provided.
We are strongly impressed with the belief that the answer is bad for we can not perceive upon what principle a right of entry could accrue before payment or tender of compensation. This, as it seems to us, was a condition precedent, which it was beyond the legislative power to exempt the corporation from performing. But, waiving the question of the sufficiency of the answer, and, for the purpose of this discussion, conceding its sufficiency, we adjudge the reply to be good. We rest our conclusion on the fact that the reply avers that there was no entry until 1867. So far as the remedy is concerned, the law then in force rules the case. The principle is well settled that a remedy may at any time be changed by the Legislature. A change in the form of the remedy is not an encroachment upon a vested right, for the plain reason that no one can have a vested right in a remedy. In this instance there was a change, both by the Legislature and by the Constitution of 1851, in the form of the remedy. Indeed, it may well be doubted whether, under the present Constitution, there can be a...
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Cincinnati v. Clifford
... ... S. Swift, Judge.Ejectment by appellee against the Cincinnati, Hamilton & Indianapolis Railroad Company for possession of appellee's land taken by ... ...