161 Ind. 328 | Ind. | 1903
— This action was brought in the Jackson Circuit Court by the prosecuting attorney of that judicial circuit to recover from the appellants the penalty of $500 given by the act of March 1, 1901 (Acts 1901, p. 149, §§3312b-3312f Burns 1901), for an alleged violation of one of the provisions of the statute by the appellants. The defendants were described in the complaint as a copartnership and association of persons, whose names were unknown to the informant, engaged in business in said county as an express company. The specific charge against the defendants was that, at their office and agency at the city of Seymour, in said county, on May 29, 1901, they refused to receive from the Southern Indiana Express Company a certain package of merchandise and to complete the transportation and delivery of the same over their line from Seymour to Indianapolis without prepayment of the charge therefor, although at said date and agency said Adams Express Company, and other named express com
The defendants entered á special appearance to the action, and moved to set aside the service of' the summons, for the reason that the defendants were sued as a copartnership, and that service of the writ was made only upon George S. Clark, agent of the defendants, and did not show that Clark was one of the copartners, such service not being authorized in this action. The motion to set aside. the service was overruled. The defendants then moved to set aside the summons on the ground that the names of the defendants were not set out in the complaint, and that the clerk of the court was not authorized to issue the writ in the form adopted. This motion also was overruled. The defendants thereupon entered a full appearance, and demurred to the complaint upon two grounds-: Want of jurisdiction of the persons of the defendants, and the insufficiency of the facts stated to constitute a cause of action. The demurrer was overruled. An answer in five paragraphs was filed, the first paragraph being a general denial.
The second paragraph of answer stated, in substance, that the defendants conducted their business with the other express companies mentioned in the complaint under special
The third paragraph of defendants’ answer alleged that defendants were a joint-stock association or copartnership, not organized under the laws of Indiana, usually called an express company, and that defendants were regularly engaged, and had been since March 29, 1879, continuously, in the business of carrying money and property over and upon railroads in the State of Indiana, and agreeing to receive and receiving compensation therefor; that they were so engaged in said State before said date, when an Indiana statute in relation to foreign express companies (§§3306-3308 Burns 1901), whose title it quotes, was approved; that upoii the taking effect of said act, and long before May 16, 1901, when the said Indiana act of that year took effect, defendants duly and fully complied with §2 of said act of 1879 (Acts 1879, p. 116) by executing and filing- in the office of the recorder of said Jackson county the “agreement” mentioned in that section, authorizing process for defendants to be served upon their express-
The fourth paragraph of answer averred that the defendants were a copartnership, an association of persons, usually called an express company, and had been for five years in the business of carrying money and property over and upon railroads operated in Indiana and in said Jackson county, and receiving, and agreeing to receive, compensation for such carriage; that the Southern Indiana Express Company did tender to the defendants the express package mentioned in the complaint for continuance of
The fifth paragraph of defendants’ answer averred that defendants were a copartnership composed of natural persons; that the State’s right, if any, to have and maintain this action rests wholly upon '§4 of the Indiana statute of March 1, 1901, whose 'title it quotes, and, without said section, the State can not maintain the action; that the
Demurrers to the second, third, fourth, and fifth paragraphs of the answer were sustained.
The cause was submitted to the court for trial upon the issue formed by the general denial, and, at the request of the defendant, the court made a special finding, with its conclusions of law thereon, which finding and conclusions were as follows: (1) That the Adams Express Company is a copartnership and association),of persons, whose individual names are unknown and could not be ascertained; (2) that said company, under the name of the Adams Express Company, is engaged in business in Jackson county, Indiana, as an express company, usually so called, and as such express company carries and transports money, merchandise, and other articles over and upon certain railroads operated in the State of Indiana, among others, over and upon the Pittsburgh, Cincinnati, Chicago & St. Louis railroad, which operates through the city of Seymour, Jackson county, State of Indiana, directly north to the city of Indianapolis, in the State of Indiana; (3) that said Adams Express Company receives and agrees to receive compensation for said services in carrying and transporting such
And, as conclusions of law upon the facts, the court found: (1) That the Adams Express Company did then and there unlawfully refuse to grant to the said Southern Indiana Express Company equal terms, facilities, accommodations, and usages in the receipt, carriage, continuance of carriage, and delivery of property usually carried by express companies; (2) that the said Adams Express Com-, pany did then and there and thereby unlawfully discriminate'against the said Southern Indiana Express Company, in refusing to receive and deliver said package to the said R. M. Smock; (3) that the law is with the plaintiff the State of Indiana, and entitles it to the relief prayed for in the complaint, and it ought to recover the sum of $500.
A motion by the defendants for a new trial was overruled, and judgment was rendered on the finding.
The errors assigned are upon the rulings of the court on the motions to set aside the service of the summons, and the summons itself, the rulings on the demurrers to the
1. Section 2 of the act of March 29, 1879 (Acts 1879, p. 146, §3307 Burns 1901), entitled “An act in relation to foreign express companies,” etc.,” provides that all such copartnerships, associations of persons, joint-stock associations, or companies, shall file in the office of the recorder in each county in which their business is conducted, or where they may have an agency or office, a statement setting forth the name of such copartnership, association of persons, etc. Section 3 of the same act declares that all such copartnerships, associations of persons, joint-stock associations, or companies may sue and maintain suits, and be sued and defend suits, in and by the name set forth in the statement required to be filed and recorded by the said act. This provision is a general one, and applies not only to suits brought by citizens or residents of this State having claims against such copartnerships, etc., engaged in the business of common carriers as express companies, arising out of transactions in this State with any agent or employe of such copartnership, etc., referred to in §2 of the act, but to all other actions, however arising, in which the co-partnership, etc., is either the plaintiff or the defendant. It is by virtue of this section alone that an unincorporated association of this character can maintain an action in the courts of this State in its trade name. Under these two sections, the appellant was described as a copartnership, under the name of the Adams Express Company, engaged in the business of a common carrier, and was properly sued in its name of the Adams Express Company. The motions to quash the writ of summons, and to set aside the service of the same, were properly overruled.
The act of 1879, supra, applies not only to foreign companies, but to all copartnerships, associations, joint-stock associations, or companies not organized or incorporated under the laws of this State, usually called express com
The complaint alleged that the defendants were “a co-partnership and association” engaged in the business of carrying money, merchandise, etc., in this State. This being the ease, the persons so engaged in that business were bound to file, in the office of the recorder of each county where they had an office or agency, a statement of the name by which they were to sue and be sued. Without this they could not lawfully engage in business at all. The law presumes that persons so situated do their duty, and it was no more necessary to aver that these copartners had complied with the law and filed a statement of their trade name than it is to- aver, in an action against a domestic corporation, that it has filed its articles of association in the proper public offices. Walker v. Shelbyville, etc., Turnpike Co., 80 Ind. 452-454; Heaston v. Cincinnati, etc., R. Co., 16 Ind. 275, 278, 79 Am. Dec. 430; Thompson, Corporations, §1825. See, also, §310 Burns 1901; Rauber v. Whitney, 125 Ind. 216.
2. The first objection taken to the complaint is that the Southern Indiana Express Company, described in the pleading as “a responsible express company * * * incorporated under the laws of the State of Indiana,” and to which the rights secured by the act of 1901 were alleged to have been denied, could not have had a legal existence because there is no statute of this State under which a corporation for the purpose of doing business as a common
The object of the act of 1901, supra, was to prevent unfair or unjust discriminations by one express company or combination of express companies acting as common carriers in this State against any consignor or other responsible company engaged in the same business, and to secure to all consignors, including other responsible express companies, equal terms, facilities, accommodations, and usages in the receipt, carriage, continuance of carriage, and delivery of money and property usually carried by express companies. To this end the act prohibited the granting by such companies to any one carrier, class, or combination of carriers, any terms, credit, privileges, advantages, usages, accommodations, or facilities in the receipt, transmission, or delivery of express matter which they did not grant to all others.
The charge in the complaint was that the appellant had refused to receive and carry the package described, and to accept and complete the carriage and delivery thereof, to
The validity of §4 of the act of 1901, on which the action is founded, is attacked upon various Constitutional grounds-, but noné of these objections can be,allowed.
-The act does not violate §22 of article 4 of the state Constitution forbidding the passage of local or special laws f©r the punishment of crimes and misdemeanors. Section 4 of the act of 1901 in question does not make any. breach of the statute a misdemeanor. It declares certain acts unlawful, and provides a penalty for every such transgression. But the recovery of the penalty must be by a civil action, and not by a criminal proceeding. In no event can there be imprisonment either for a violation of the act or for a failure to pay or stay the judgment for the penalty. In this respect the act stands upon the same footing as the blackboard act, the mortgage satisfaction act, etc.-' State v. Indiana, etc., R. Co., 133 Ind. 69, 83-85, 18 L. R. A. 502; Pennsylvania Co. v. State, 142 Ind. 428; Judy v. Thompson, 156 Ind. 533.
Crimes and misdemeanors in this State are such wrongs of • a public nature as are punished by criminal proceed
The,provision of §16 of article 1 of the state Constitution, that all penalties shall be proportioned to the nature of the offense, has reference to criminal proceedings; but, were it otherwise, we could not say that in dealing with a subject involving such large and important public interests as the prevention of unfair traffic discriminations among themselves by common carriers, a penalty of $500 was out of proportion to the nature of the offense against which it was denounced.
It is nextñnsisted by counsel for appellant that as the consignor in this case was not entitled at common law to such an interchange of business as is described in the complaint, and the appellant had the right to demand prepayment of its charges, such right to demand or waive prepayment was property, and the statute, by depriving the appellant of the right to elect when and of whom it would demand prepayment of its charges, deprived it of this property without due process of law, and therefore violated the fourteenth amendment of the Constitution of the United States, and also §21 of article 1 of the Constitution of this State.
A further objection urged by counsel is that the requirement of equal facilities, credit, etc., to all carriers, deprives express companies of liberty without due process of law.
The statute of May 15, 1901, was enacted by the legislature in the legitimate exercise of its police power for the protection of the public welfare. The state Constitution itself declares (§1, article 1) that all free governments are,
. The purpose of the statute was" to prevent express companies and other common carriers doing business in this State from unfairly and unjustly discriminating against other persons or corporations engaged in the same business, by extending to some carriers advantages and facilities which were denied to others. Of late years many important enactments of this character, State and federal, have been found necessary for the protection of the interests of the people. All rules, practices, customs, and usages de
In the case before us, we find no unlawful invasion of the constitutional rights of the appellant. The act compelled it to make no payment of the charges of any preceding carrier, nor to enter into any special trafile arrangements with it. Its just and reasonable requirement was
Neither did the law exact from the appellant obligations and duties not exacted from the Southern Indiana Express Company. It applied equally to both, and each could demand from the other the benefit of any and all facilities, customs, usages, terms, and credits which such other allowed to its most favored patrons.
The objection that the act of 1901 is invalid because it interferes with interstate commerce is wholly unsupported. Besides, no such question is presented by the record. The package which the appellant refused to receive and carry was sent from Bedford, Lawrence county, in this State, and was to be delivered at Indianapolis.
The act of 1879 (Acts 1879, p. 148, §3306 et seq. Burns 1901), in relation to foreign express companies, and requiring them, among other duties, to file a statement of the name and locality of the company, the amount of its capital, and an agreement authorizing suits to be brought against it in certain cases, did not give to companies complying with its requirements a vested right to carry on business sifbjeet only to the laws then existing, and exempt from all future and further legislative control.
It is .not necessary that we'should consider separately the questions arising upon the demurrers to the answers. These pleadings, with the arguments of counsel supporting
The several conclusions of law were in harmony with the views expressed in this opinion, and we are unable to say that any controlling finding of fact was not sustained by the evidence or was contrary to law.
Eor the reason stated elsewhere in this opinion, the court did not err in excluding the certified copy of the articles of association of the Southern Indiana Express Company, offered in evidence by the appellant.
We find no error. Judgment affirmed.