F.W. Cook Inv. Co. v. Evansville Terminal Ry.
| Decision Date | 14 December 1910 |
| Docket Number | No. 21,771.,21,771. |
| Citation | 93 N.E. 279,175 Ind. 3 |
| Parties | F. W. COOK INV. CO. v. EVANSVILLE TERMINAL RY. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vanderburgh County; A. Gilchrist, Judge.
Condemnation proceedings by the Evansville Terminal Railway against the F. W. Cook Investment Company. Judgment for plaintiff, and defendant appeals. Affirmed.George A. Cunningham, for appellant. Robinson & Stilwell and Funkhouser & Funkhouser, for appellee.
Action by appellee to condemn real estate for use in the construction of its street and interurban railroad. Appellee was duly organized under the Voluntary Associations Act of March 9, 1901 (Acts 1901, c. 127), and the amendment or supplement thereto approved March 7, 1903 (Acts 1903, c. 93).
The single question involved in this appeal is this: Is appellee a corporation authorized by law to exercise the right of eminent domain?
The first section of the act of March 9, 1901 (section 4286, Burns' Ann. St. 1908), which the above act of March 7, 1903, amends, provides that, “any number of persons, not less than three, may voluntarily associate themselves by written articles of association, signed and acknowledged by each person who may be a member at the time of organization, specifying: ***” Then stating what the articles of association shall contain. The second section of the act provides “that such associations may be formed for one only of the following purposes.” This is followed by a list of more than 30 purposes for which such association may be formed. The twenty-eighth section provides that from the time the certificate is issued by the Secretary of State and the articles recorded in the recorder's office, such association “shall be deemed and held to be a corporation, and shall have and possess all the rights, powers, and privileges given to corporations by common law,” etc.
Prior to 1901 there had been many acts, original and amendatory, regulating the organization of voluntary associations, and it is clear that, in framing the act of March 9, 1901, the Legislature attempted and intended to revise, consolidate, abridge, and perfect the legislation on that subject. By the act of March 9th, as many as 12 distinct previous acts on the subject, and all other laws inconsistent therewith, were specially repealed. But it is just as plain that the legislature next following attempted, and intended, to extend the privileges of the voluntary associations act to other and additional industries and activities.
The title and first section of the supplemental act of 1903 is as follows:
“An act authorizing the formation of corporations under the provisions of ‘An act concerning the organization and perpetuity of voluntary associations, repealing all laws in conflict therewith, legalizing the organization of certain associations organized under former laws, and declaring an emergency,’ approved March 9, 1901, for certain purposes not therein named, and declaring an emergency.
We are advised by the above title that the purpose of the act was to authorize the formation of corporations under the act of 1901, “for certain purposes not named” in the latter act. In the body of the act it is made clear that among the certain purposes not named in the former act, and to which the supplemental act relates, is to authorize the formation of corporations “to promote, finance, construct, equip, rent, and operate in the state of Indiana, street and interurban railroads *** and to do all other things needful or connected therewith.”
Neither the act of 1901, nor that of 1903, confers any right upon any corporation organized thereunder to condemn real estate, and if such power exists, it must be found in some other statute; for it cannot be implied. Gas Company v. Harless, 131 Ind. 446, 29 N. E. 1062, 15 L. R. A. 505; 2 Elliott R. R. § 957.
When the persons organizing appellee company had complied with the provisions of the above statutes, the associations which they had formed became, by the express terms of the statute, a corporation, and having decided to engage in the promotion, construction, equipment, and operation of a street and interurban railroad, by the express provisions of the act of 1901, the corporation became a street and interurban railroad corporation. Because appellee announces in its articles of association its further purpose, “to promote plants for the creation and distribution of electric and other heat, light, and power,” will make no difference. If it engages in the latter-that is, if it pursues the business of creating and distributing light and heat in respect to the latter-it would also be a “light and heat” company.
It is held in County of Randolph v. Post, 93 U. S. 502, 23 L. Ed. 957, that a corporation with authority to ...
To continue reading
Request your trial