New Albany & Salem R.R. Co. v. Tilton
| Decision Date | 23 May 1859 |
| Citation | 12 Ind. 2 |
| Parties | The New Albany and Salem Railroad Company v. Tilton |
| Court | Indiana Supreme Court |
From the Pulaski Circuit Court.
The judgment is affirmed with costs.
W. G Cooper, for appellant.
Counsel for the appellants, upon the principal question discussed in the opinion of the Court, cited the following authorities:
It may be urged, that the legislature has undoubted police jurisdiction over all corporations of their creating. This may in a measure be, and probably in some cases is, true; but it depends upon circumstances how far this power extends. They have, of course, the power to dictate the most exacting terms to the party asking to be incorporated, and, if they accept, are bound by them; but, in order to alter or modify these terms after their acceptance, who can doubt, for one moment, but what it would be necessary for the state to first obtain the consent of the other party before the alteration or else it would not be binding upon private corporations because their charters are contracts. Parsons on Contracts 514. That the charters of private corporations, of which bank, insurance, turnpike, and railroad companies, are the leading instances, are contracts protected by the tenth section of the constitution of the United States, seems to be well settled. 2 Story on the Const. 1393 --2 Kent's Comm. 272.--Angell and Ames on Corp. chap. 1, § 31. The main distinction between public and private corporations is, that, over the former, the legislature, as the trustee or guardian of the public interests, has the exclusive and unrestrained control; and, acting as such, as it may create, so may it destroy or modify, as public exigency requires or recommends, or the public interest will be best subserved. The right to establish, alter, or abolish such corporations seems to be a principle inherent in the very nature of the institutions themselves; since all mere municipal regulations must, from the nature of things, be subject to the absolute control of the government. Such institutions are the auxiliaries of the government in the important business of municipal rule, and cannot have the least pretension to sustain their privileges or their existence upon anything like a contract between them and the legislature; because there can be no reciprocity of stipulation, and because their objects and duties are incompatible with everything of the nature of compact.
Private corporations, on the other hand, are created by an act of the legislature, which, in connection with its acceptance, is regarded as a compact, and one which, so long as the body corporate faithfully observes, the legislature is constitutionally restrained from impairing, by annexing new terms and conditions, onerous in their operation, or inconsistent with a reasonable construction of their contract. Bailey v. The Mayor, &c., of New York, 3 Hill 531.--State of Ohio v. Washington, &c., Library Co., 11 Ohio 96.-- Marietta v. Fearing, 4 id. 427.--Washington Bridge Co. v. The State, 18 Conn. 53.--Young v. Harrison, 6 Ga. 130.--County of Richland v. County of Lawrence, 12 Ill. 1.--The President, &c., v. Moore, 13 Sm. and Marsh. 157.--Hope v. Deaderick, 8 Humph. (Tenn.) 1. Thus it has been expressly held that the legislature has no power to direct that any portion of the debts due a bank shall be received in anything but gold or silver, as it impairs the contract created by the act of incorporation. Bush v. Shipman, 4 Scam. (Ill.) 190; and see McKim v. Odom, 3 Bland. (Md. Ch.) 417. Private corporations are indisputably the creatures of public policy, and, in the popular meaning of the term, may be called public; but, yet, if the whole interest does not belong to the government (as if the corporation is created for the administration of civil or municipal power), the corporation is private. A bank, for instance, may be created by the government for its own uses; but, if the stock is owned by private persons, it is a private corporation, although it is erected by the sanction of public authority, and its objects and operations partake of a public nature. Bank of the United States v. Planters' Bank of Georgia, 9 Wheat. 904.--Miners' Bank v. The United States, 1 Greene (Iowa), 553. "Generally speaking," says the Court, in the case of Bonaparte v. Camden, &c., Railroad Company, "public corporations are towns, cities, counties, parishes, existing for public purposes: private corporations are banks, insurance, roads, canals, bridges, &c., where the stock is owned by individuals; but their use may be public" 1 Bald. (Cir. Court) 222. In all the last-named and other like corporations, the acts done by them are done with a view to their own interests; and, if they thereby incidentally promote that of the public, it cannot reasonably be supposed they do it from any spirit of liberality they have beyond that of their fellow-citizens. Both the property and the sole object of every such corporation are essentially private; and, from them, the individuals composing the company corporate are to derive profit. Ten Eyck v. The Delaware and Raritan Canal Co., 18 N. J. L. [3 Harr.] 200.--Raleigh &c. Railroad Co. v. Davis, 2 Dev. and Bat. (N. C.) 451. A private corporation, whether civil or eleemosynary, is a contract between the government and the corporators; and the legislature cannot repeal, impair, or alter the rights and privileges conferred by the charter. 2 Kent's Comm. 306 --Angell and Ames on Corp., § 767.--2 Story on the Const., § 1393.
D. D. Pratt, for appellee.
This was an action commenced before a justice of the peace by Tilton, to recover of the appellant the value of a mare, alleged to have been killed by the locomotive, &c., of said company. There was a recovery of 100 dollars before the justice, and also for the same amount in the Circuit Court upon appeal.
There is no allegation in the pleadings of negligence; nor was there any evidence upon the trial upon that point; nor was there any evidence of any order, under the statute, of the county authorities, in relation to the kind of animals that should be permitted to run at large.
The suit was evidently instituted under the act of March 1, 1853, copied at large in The Madison, &c., R. Co. v. Whiteneck, 8 Ind. 217.
The main point argued in this case is, as to whether the act referred to is constitutional.
Before proceeding to the examination of that question, we will dispose of some others that are raised and argued, although heretofore either directly or indirectly decided.
First. It is insisted that the service of a notice of the day of trial on a conductor of a train, was not such service as should compel the appearance of the defendant, although the statute expressly provides therefor.
In addition to the reasons given in The New Albany &c., R. R. Co. v. Grooms, 9 Ind. 243, sustaining such service, we might say, that the policy of our system of jurisprudence requires that the party to be affected directly by a judgment, should, in some form, have notice of the pendency of proceedings in a Court of justice, which might ultimately result in such a judgment. Where the proceedings are against a natural person, the best mode, and therefore the one that should be adopted where it can be, keeping the ends of justice to both parties in view, is, by personal service; but as to one of those impalpable and imperceptible bodies, known as artificial persons, or bodies corporate, such a rule cannot prevail; for a service upon a director, an officer, or an agent of such an institution, could not, in point of fact, be said to be a...
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