F. W. Cook Investment Company v. Evansville Terminal Railway
| Decision Date | 14 December 1910 |
| Docket Number | 21,771 |
| Citation | 93 N.E. 279,175 Ind. 3 |
| Parties | F. W. Cook Investment Company v. Evansville Terminal Railway |
| Court | Indiana Supreme Court |
From Superior Court of Vanderburgh County; Alexander Gilchrist Judge.
Action by the Evansville Terminal Railway against the F. W. Cook Investment Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
George A. Cunningham, for appellant.
Funkhouser & Funkhouser and Robinson & Stilwell, for appellee.
OPINION
Action by appellee to condemn real estate for use in constructing its street and interurban railroad. Appellee was duly organized under the voluntary associations act of March 9, 1901 (Acts 1901 p. 289), and the amendment or supplement thereto, approved March 7, 1903 (Acts 1903 p. 180).
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 said act of March 9, 1901 (§ 4286 Burns 1908), which the act of 1903, supra, 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," etc., and stating what the articles of association shall contain. The second section of said act (§ 4287 Burns 1908) provides "that such associations may be formed for one only of the following purposes." This is followed by a list of more than thirty purposes for which such association may be formed. The twenty-eighth section (§ 4319 Burns 1908) 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 1901, supra, the legislature intended to revise, consolidate, abridge and perfect the legislation on that subject. By said act of 1901, as many as twelve distinct previous acts on the subject, and all other laws inconsistent therewith, were specially repealed. But it is just as plain that the next legislature 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 act of 1903, supra, are as follows:
We are advised by said 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 one to authorize the formation of corporations "to promote, finance, construct, equip, rent and operate, in the State of Indiana or elsewhere, 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. Consumers' Gas Trust Co. v. Harless (1892), 131 Ind. 446, 29 N.E. 1062, 15 L.R.A. 505; 2 Elliott, Railroads (2d ed.) § 957.
When the persons organizing appellee company had complied with the provisions of said statutes, the association 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 1903, supra, 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--it will also be a "light and heat" company.
It is held in the case of County of Randolph v. Post (1876), 93 U.S. 502, 23 L.Ed. 957, that a corporation with authority to "construct, complete and operate a railroad" is not the less a railroad company because it is also a coal, or a mining, or a furnace, or a manufacturing company. Seymour v. City of Tacoma (1893), 6 Wash. 138, 32 P. 1077.
As before stated, a corporation formed under the voluntary associations act derives no authority from that act to condemn real estate for railroad or any other purpose, and no such right exists without express statutory authority. Neither did the act of 1861 (Acts 1861 [s. s.] p. 75) authorizing the organization of street railroads, nor did any of its many subsequent amendments convey any such right. § 5630 et seq. Burns 1908. So we must, of necessity, look to some other statute, or deny the right altogether.
It is well to note that in considering the right to...
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F.W. Cook Inv. Co. v. Evansville Terminal Ry.
......Gilchrist, Judge. Condemnation proceedings by the Evansville Terminal Railway" against the F. W. Cook Investment Company. Judgment for plaintiff, and defendant appeals. Affirmed.\xC2"......