State ex rel. Weir, Prosecuting Attorney, & C. v. Dawson

• Decision Date: 27 May 1861
• Citation: 16 Ind. 40
• Court: Indiana Supreme Court
• Parties: The State, on the relation of Weir, Prosecuting Attorney, &c. v. Dawson and Others

16 Ind. 40

The State, on the relation of Weir, Prosecuting Attorney, &c. v. Dawson and Others

Supreme Court of Indiana

May 27, 1861

APPEAL from the Clark Circuit Court.

The judgment is reversed, with costs. Cause remanded for further proceedings in accordance with this opinion.

C. B Smith, J. W. Gordon and Watt J. Smith, for the appellant.

R Crawford, for the appellees.

(1.) Mr. Crawford, for appellees, cited the following authorities Repeals by implication are not favored. Trustees v Birkenhead Dock Co., 23 E. L. & E. R. 392; Kane v. The People, 8 Wend. 204; Marlot v. Lawrence, 1 Blatch. 608; Dugan v. Gittings, 3 Gill. 138; George v. Skeates, 19 Ala. 738; Raudebaugh v. Shelley, 6 Ohio St. R. 307; Lichtenstein v. State, 5 Ind. 162.

The question does not depend on principle. It has been decided in this State, and similar questions in other States. State v. Barbee, 3 Ind. 258; Hand v. Taylor, 4 id. 410; State v. Dudley, 1 Ohio St. R. 437; Cass v. Dillon, 2 id. 608; Citizens' Bank v. Wright, 6 id. 318; State v. Trustees, 8 id. 394; 3 Gray 601; Broadbent v. State, 7 Md. 416.

OPINION

Perkins, J.

Information against the defendants, charging that they are pretending to be a corporation, and to act as such, when they are not a corporation. It charges that in January, 1849, the Legislature of the State of Indiana enacted a special charter of incorporation, (which is set out at length,) for a railroad from Fort Wayne, Indiana, to Jeffersonville, to be called the Fort Wayne and Southern Railroad; that the persons named in the charter as directors did not accept said charter till June 2, 1852, when they did meet and accept the same, and organize under it. It is alleged that the defendants are assuming to act under said charter, never having organized under any other. The Court below sustained a demurrer to the information; thus holding the defendants to be a legal corporation.

The present Constitution of Indiana took effect on November 1, 1851. It contains these provisions:

"All laws now in force and not inconsistent with this Constitution, shall remain in force, until they shall expire or be repealed." Sched. (1 sub. sec.) of Const.

"Corporations, other than banking, shall not be created by special act, but may be formed under general laws." Art. 11, § 13.

"All acts of incorporation for municipal purposes shall continue in force under this Constitution, until such time as the General Assembly shall, in its discretion, modify or repeal the same." Sched. supra, sub. sec. 4.

The charter for the Fort Wayne and Southern Railroad was not a charter for municipal purposes, and, hence, was not specially continued in existence. Art. 11, § 13, above quoted, prohibits the creation of a corporation by special act or charter, that is, as we construe the prohibition, through, or by virtue of, such special act or charter, after November 1, 1851. The policy that induced the prohibition, as well as its literal import, demands this construction. It is necessary for us to ascertain, then, when the defendants, if ever, were created a corporation. The simple enactment of the charter for the corporation, by the Legislature, did not create the corporation. It required one act on the part of the persons named in the charter to do that, viz: acceptance of the charter enacted.

Says Grant, in his work on corporations, vide p. 13: "Nor can a charter be forced on any body of persons who do not choose to accept it." And again, at page 18, he says, "The fundamental rule is this: no charter of incorporation is of any effect until it is accepted by a majority of the grantees, or persons who are to be the corporators under it. Bagge's case, 2 Brownl. & G. 100; S. C. 1 Roll. Rep. 224; Dr. Askew's case, 4 Burr. 2200; Rutter v. Chapman, 8 M. & W. 25; per Wilmot, J., Rex v. Vice-Chancellor of Cambridge, 3 Burr 1661. This is analogous to the general rule that a man can not be obliged to accept the grant or devise of an estate. Townson v. Tickell, 3 B. & Ald. 31." See, also, Ang. & Am. § 83, where it is said, if a charter is granted to those who did not apply for it, the grant is said to be in fieri till acceptance. We need not inquire whether this rule extends to municipal corporations in this country. As to what may constitute an acceptance we are not here called on to decide, as the information expressly shows that there was none in this case till June, 1852, which fact is admitted by the demurrer.

The grant of the charter in question, then, to those who had not applied for it, was but an offer, on the part of the State; a consent that the persons named in the charter might become a corporation, might be created such an artificial being, by accepting the charter offered. But an offer, till accepted may be withdrawn. In this case, the offer made...