The State v. The Chicago And Eastern Illinois Railroad Co.

• Decision Date: 10 March 1896
• Docket Number: 17,647
• Citation: 43 N.E. 226,145 Ind. 229
• Parties: The State v. The Chicago and Eastern Illinois Railroad Company et al
• Court: Indiana Supreme Court

43 N.E. 226

145 Ind. 229

The State v. The Chicago and Eastern Illinois Railroad Company et al

No. 17,647

Supreme Court of Indiana

March 10, 1896

Rehearing Denied May 28, 1896.

From the Marion Circuit Court.

Affirmed.

W. A Ketcham, Attorney-General, Smith & Korbly, and L. O Bailey, for State.

A. C. Harris, for appellees.

OPINION

Jordan, J.

This action was instituted by the State to recover of the appellee the sum of $ 25,000.00, which it claimed accrued to the former under the act of 1891 (Acts of 1891, p. 84), as fees for the filing and recording of appellee's articles of consolidation in the office of the Secretary of State. The complaint avers "That on the 9th day of March, 1881, the Chicago & Eastern Illinois Railroad Company was formed by the consolidation, under the laws of the States of Indiana and Illinois, of certain railways in those States, which company continued in existence; that on the 30th day of April, 1886, another consolidated railroad corporation was formed, under the laws of Indiana and Illinois, under the name of the Chicago & Indiana Coal Railway Company, which company continued in existence; that on June 6, 1894, under the laws of Indiana and Illinois, 'the said Chicago & Eastern Illinois Railroad Company,' as consolidated on the said 9th day of March, 1881, and the said Chicago & Indiana Coal Railway Company, undertook and attempted to consolidate, and did enter into articles of agreement and consolidation, and thereby became 'the Chicago & Eastern Illinois Railroad Company,' the defendants herein--that being the name given the new consolidated corporation in said articles; that by the articles of consolidation, the consolidated company was authorized to issue capital stock to the amount of $ 25,000,000.00.

"That pursuant to the resolution of the board of directors of the said consolidated company, and the agreement of said consolidated companies, said consolidated company did, on the 7th day of June, 1894, deliver for filing to the Honorable William R. Myers, the then Secretary of State of the State of Indiana, the articles of consolidation aforesaid, and did then and there, on the said 7th day of June, 1894, request and demand that said Myers, as such Secretary of State, should cause the same to be filed in the office of the Secretary of State, as by the statute made and provided; and the said William R. Myers, Secretary of State, did then and there, to-wit: June 7, 1894, receive from said consolidated corporation said articles of consolidation for the purpose of being filed, and the said Myers, as such Secretary of State, did then and there notify and inform the officer and agent of said consolidated corporation for presenting said articles of consolidation for filing, that the fee therefor, which by law he was required to collect, amounted to $ 25,000.00, and did then and there demand of such agent of said consolidated corporation the payment of said fee of $ 25,000.00, but he, the said agent of the said consolidated company, then and there failed, neglected and refused so to do, and wrongfully and unlawfully took and removed the said articles of consolidation from the said office of the said Secretary of State; and although payment of said fee has been often since demanded from the defendants, and each of them, they have wholly failed, neglected, and refused to pay the same, or any part thereof, and the same is now due and unpaid." * * * *

The cause was put at issue by an answer in denial, upon the part of the appellee, and upon a trial by the court, without the intervention of a jury, the result was a finding "that the plaintiff take nothing by its suit." Over a motion by appellant for a new trial, wherein, among other reasons, it was assigned that the finding was contrary both to the evidence and the law, judgment was rendered upon the finding.

The action of the court in overruling this motion, is the only error assigned in this appeal. The learned counsel for the appellant propound two questions, which they contend are presented by the record for the consideration of this court, namely.

"1. Was the appellee, The Chicago & Eastern Illinois Railroad Company, bound to pay the corporation tax provided for in the act of 1891, notwithstanding the Secretary of State did not formally file the articles of consolidation tendered for filing, and received by him?

"2. Was the defendant, under the pleadings filed, in a condition to claim that the articles of consolidation were not actually filed, or is it not estopped because of its unsworn answer in general denial from controverting its corporate existence, as alleged in the complaint, and consequently from claiming that it did not file its articles of consolidation in all respects in compliance with the act of 1891?"

The theory of the complaint, which must be determined from its entire scope and purpose, appears to be, that the appellee, as a consolidated railroad company, presented its articles of consolidation to the Secretary of State for the purpose of having the same filed and recorded by said officer in his office. That said consolidated company requested and demanded that its articles should be filed and recorded by said secretary. That the latter received the same from the appellee for the purpose of being filed, and demanded the payment of $ 25,000.00 as the fee provided by the act of 1891, which appellee refused to pay, and wrongfully and unlawfully took and removed the articles from the office of said secretary, and upon demand still refuses to pay said sum, which is due and unpaid. It has been repeatedly affirmed by this court, that a definite theory of the plaintiff's cause of action must be outlined by his complaint, and this the evidence must sustain and the law support, and if he succeeds at all in obtaining the relief demanded, it must be upon such theory. The contentions of appellee's learned counsel, in part, are that, under the evidence, the State wholly failed to sustain the allegations of its complaint, and that the judgment of the trial court, for this reason, must be affirmed. They insist that "conceding that the mere presentation of appellee's articles of consolidation, at the office of the Secretary of State, was an 'attempt to organize under Indiana laws,' the record contains ample evidence that the appellee immediately repudiated that attempt. The necessity of filing its articles and paying the fee in order to obtain incorporation, was brought directly to the knowledge of the appellee by the Secretary of State, and the terms of the State's offer were at once rejected. They have never since been accepted."

They further contend that the evidence shows that the "appellee did not leave its articles of consolidation with the officer for action or preservation. It simply showed them to him, and upon learning the amount of the fee, immediately removed them from his office. The officer did not endorse the articles as received into his custody, nor give them a place among other papers, nor file them away."

Assuming that the complaint is sufficient, we may therefore limit our investigation to the cardinal question involved: is the judgment of the trial court a correct result, according to law under the evidence in the cause?

The evidence, which we have carefully read, discloses that about June 7th, 1894, one Chas. E. Heckler, a clerk in the law department of the Chicago & Southern Illinois Railroad Company, in the city of Chicago, and representing this corporation, was sent to Indianapolis, Indiana, for the special purpose of having filed in the office of the Secretary of State of Indiana, the articles of consolidation in question, and also in the offices of the several county recorders of the counties through which the line of said railroad passed. Heckler gave his evidence by deposition, and in stating his version as to what took place between him and Mr. Ellis, the deputy Secretary of State, in...