21 Minn. 241 | Minn. | 1875
By an act of the legislative assembly of the territory of Minnesota, approved May 23, 1857, (Laws 1857, extra sess., ch. 93,) it is enacted (§1) “that Erastus Corning” (and twenty-five others named therein) “and their associates, successors and assigns be, and they hereby are constituted a body corporate and politic, by the name and style of the Nebraska and Lake Superior Railroad Company,” with the powers, privileges and immunities usually granted in charters of incorporation. The second section provides that “the said corporation is hereby authorized and empowered to survey, locate, construct, maintain, use and operate at pleasure, to alter the line thereof, without changing the eastern terminus, a railroad, with one or more tracks or lines of rails, to commence at some convenient point or place, (within the territory of Minnesota,) at the west end of Lake Superior, or on Superior Bay in said territory, or on the Bay of St. Louis in the territory of Minnesota, and running thence Avesterly within said territory via Cheyenne City to the Nebraska line, or such route as
The concluding sections are as follows : “ Sec. 18. This act is hereby declared to be a public act, and may be amended by any subsequent legislative assembly in any manner not destroying or impairing the vested rights of said corporation.
“ Sec. 19. The said company shall give notice in writing to the governor of said territory, on or before the first day of January, 1858, of their intention to proceed under the provisions of this act; and in case of their failure to give such notice, this act, and all the powers herein granted, shall become null and void.”
Undoubtedly a very considerable latitude of discretion is given by this charter to the company in fixing the termini and the route of the proposed railroad. It is authorized “to construct, * * * and at pleasure to alter,” (for the words should undoubtedly be read in this order,) the line of its road, preserving the eastern terminus, and may choose the route via Cheyenne City, “ or such route as the corporators may deem most expedient.” But this discretion is not unlimited. The evident purpose of the act is to provide for a road, wholly within the territory of Minnesota, from Lake Superior to the Nebraska line. The company may reach that line via Cheyenne City, which is admitted to be one degree north of Duluth, at the junction of Cheyenne river and the Bed Biver of the North, or by such other route as they may deem most expedient; but any route they may select must be such as will lead, in a westerly direction, to the Nebraska line. The legislative assembly certainly did not intend to authorize the company to build a road to any point they might choose to select, provided it lay west of a north and south line drawn through the terminus at
On March 8, 1861, an act was passed by the legislature of the state of Minnesota, entitled “An act to amend an act entitled ‘An act to incorporate the Nebraska and Lake Superior Railroad Company,’ ” (Sp. Laws 1861, ch. 1,) in which it is enacted as follows :
“ Section 1. That the act of the territorial legislature of Minnesota, entitled ‘An act to incorporate the Nebraska and Lake Superior Railroad Company,’ approved May 23, 1857, be and the same is hereby amended and continued so that it shall read as follows : that Lyman Dayton,” (and sixteen others who are named,) “ and their associates and successors, be and they are hereby constituted a body corporate and politic, by the name and style of the Lake Superior and Mississippi Railroad Company” (continuing in the language of the same section of the act of 1857.)
“Section 2. That said corporation is hereby authorized and empowered to survey, locate, construct, maintain, use and operate, and at pleasure to alter the line thereof, a railroad, with one or more tracks or lines of rails, to commence at some convenient point or place, within the state of Minnesota, at the west end of Lake Superior, and running thence, by the most feasible route within this state, to some point on the Mississippi, with the right to extend the same to the Minnesota river; and also with the right to construct a branch from the main line to the navigable waters of the St. Croix, together with all proper stations,” etc.
The third section fixes the capital stock at live million dollars, to be divided into shares of one hundred dollars each. The remaining sections of the act are substantially, and for the most part literally, the same as the corresponding sections in the act of 1857.
The defendant in its answer claims that its proceedings were authorized by the acts of 1857 and 1861, and the various acts amendatory of the latter act.
It was found at the trial that a paper, bearing date Sepember 12, 1857, addressed to the governor of the territory, signed by eighteen (being a majority) of the corporators named in the act of 1857, and notifying the governor of the company’s acceptance of that charter, and its intention to proceed under it, was filed on December 26, 1857, and remains on file in the office of the secretary of state.
It is objected by the plaintiffs’ counsel that this evidence was insufficient to prove a notice by the corporation to the governor, as required by the act of 1857. If it were necessary to determine this question, we are inclined to think that there would be little difficulty in presuming that all the requirements of the charter, in regard to its acceptance by the corporators, were substantially complied with. But in our examination of the principal question in the case, we ■shall assume that the Nebraska and Lake Superior Railroad
It is further insisted by the plaintiffs’ counsel that the act of 1857, being a grant of corporate rights and franchises to the corporators therein named, (or at least to those eighteen who signed the notice of acceptance,) was a contract between the state and these corporators, the obligation of which was impaired by the act of 1861. In answer to this position, it is enough to say that the plaintiffs make no claim that any rights of their own, under the contract contained in the charter, have been invaded by the act of 1861; and it is therefore not open to them to attack the constitutionality of the latter act on this ground.
But on May 11,1858, between the dates of the passage of the two acts we are considering, Minnesota became a State in the Union, with a constitution which provides, (Art. 10, § 1,) that “No corporations shall be formed under sj)ecial acts, except for municipal purposes,” and the validity of the act of 1861 is drawn in question on the ground that it contravenes this constitutional inhibition.
The language of this section has been largely discussed by the plaintiffs’ counsel in their printed argument, in which they contend that the word “ formed ” has a meaning different from that of “ created,” and that the effect of this provision is to prohibit the formation, after the adoption of the constitution, of a corporation, by persons authorized by a special act of the territorial legislature to become a corporation. But we think the natural and obvious meaning of this section is that no corporations shall be created under special acts ; and this construction would of course preclude the creation of corporations by special acts.
We have assumed, in accordance with the position taken by the defendant, that the Nebraska & Lake Superior B. Co., as incorporated by the act of 1857, continued in existence, and in the possession of all its corporate franchises,.
There is no evidence that any further proceedings beyond the acceptance of their charter were ever taken by the corporators named in the act of 1857, or by the corporation itself. The corporation was never organized by the choice of officers, nor was any stock ever issued, down to the date of the passage of the act of 1861. That no stock had ever been issued, or any organization effected, under the act of 1857, is apparent upon an examination of sectioii 4 in the act of 1857 and the corresponding section in the act of 1861. The first company was to be organized when stock to the amount of $300,000 was subscribed, and five per cent, thereof paid in, whereupon the subscribers to the stock were to meet and choose directors. The second company was to be organized in like manner upon a subscription of $150,-000, and payment of five per cent. At the first meeting of the corporators named in the latter act, (April 13, 1861,) it was voted to accept the act, to take proceedings for permanent organization, to give notice of the opening of books for receiving subscriptions to stock, to open and use the books and form of subscription prepared by Lyman Dayton, Esq.; and at the adjourned meeting, May 13, 1861, Mr. Dayton was designated to receive the five per cent, to be paid on subscriptions. It also appears that, so late as the year 1864, the notice of acceptance of the charter of 1857 had not been found; that in that year steps were taken by a majority of the defendant’s stockholders toward an organization under the general railway law, and a union of the defendant company with the company thus organized, these proceedings being abandoned upon the subsequent discovery of the notice. These facts leave no room for any presumption that, prior to the passage of the act of 1861,
On March 8, 1861, therefore, the Nebraska & Lake Superior Railroad Company was composed of the twenty-six corporators named in the charter; or, in any event, its membership comprised the eighteen who signed the notice of the acceptance of the charter. But three of these twenty-six, and of the eighteen but two, are named as corporators in the act purporting to amend their charter; nor does it appear that the corporation, or any of its corporators, except these three, applied for or accepted the act of 1861.
The eighteenth section of the act of 1857, already quoted, provides for its amendment, by any subsequent legislative assembly, in any manner not destroying or impairing the vested rights of the corporation. It is not easy, nor in this case is it necessary, to define with accuracy the extent of the alterations which, in the exercise of such a reserved power as tiiis, the legislature may make in the charter of a company, and to which the company will be bound to conform. Laying aside the proviso saving vested rights, and assuming the power of amendment to be untrammelled by any such restriction, still this power must somewhere have a limit. Under the pretence of amending its charter, the legislature cannot compel a company to embark upon a new enterprise, radically and essentially different from that con
After the passage of the act of 1861, therefore, and the-organization of the defendant under it, there still existed the Nebraska & Lake Superior Railroad Co., a corporation empowered to build and operate a railroad from Lake Superior westerly to Nebraska, but with no power, and under no duty, to build a railroad from Duluth to St. Paul, and also, (if the act of 1861 is of any validity,) the corporation now defendant, the Lake Superior & Mississippi Railroad Co., with no power to build a road from Lake Superior to Nebraska, but with full power (as it claims) to build and operate the road which it has constructed between Duluth, at the west end of Lake Superior and St. Paul.
In appearance, at least, these are two distinct and independent corporations, with franchises and powers essentially and radically different. They resemble each other in this, that each is a railroad corporation, and the provisions of the-two charters prescribing the mode of obtaining subscriptions-
It is not denied that very considerable change may be made in the charter and the membership of a corporation, without destroying its identity. The membership of a corporation aggregate is continually changing as shares are transferred by one person to another, the corporation remaining the same. A corporation may, by authority from the legislature, (in the absence of any constitutional restriction upon the power of the legislature in this particular,) and with the assent of'the shareholders, engage in new enterprises, foreign to those contemplated in the original charter, without becoming a new corporation. The name of a corporation, like that of an individual, may be changed without destroying its identity.
It is unnecessary to determine in this case whether the legislature, in 1861, might have granted to the Nebraska & Lake Superior Bailroad Company the franchise of building and operating a railroad from Duluth to St. Paul, and of taking private property for the purposes of such road, the company, in respect of this new line of road, to possess all the powers granted by the charter in respect of the road
On the other hand, it was held in California State Telegraph Co. v. Alta Tel. Co., 22 Cal. 398, under a constitutional provision that “no corporation shall be created bjr special act, except for municipal'purposes,” that, by this provision, “the legislature was not directly or impliedly prohibited from granting to a corporation already in existence, and created under the general laws, special privileges, in the nature of a franchise, by a special act.” This doctrine, it is evident, would open an easy way of escape from constitutional restraints. In an earlier case, (Low v. City of Marysville, 5 Cal. 214,) it was held that “as it would have been in violation of the constitution to create a corporation by special act, for other than municipal purposes, it follows that it would be equally unconstitutional to confer special power on a corporation already created. In other words, it would be doing by two acts that which the legislature could not do by one; and corporations for almost every purpose might be created by special act, by first incorporating the stockholders as a munidpal body.” And in a very recent case, the supreme oourt of California has reconsidered the doctrine of the case of California State Tel. Co. v. Alta Tel. Co., has carefully reviewed the au
But whether the grant, to an existing corporation, of new corporate franchises, powers or immunities, different from those enjoyed bjr corporations organized under the general law, would or would not be an infringement of the constitutional provision prohibiting the formation of corporations under special acts, it must be conceded that a corporation is formed under a special act when the individuals forming the corporation derive their franchise to be a corporation wholly from such special act; and when the legislature, uno fiatu, grant to persons, who are not already a corporation, the franchise to be a corporation, under a name not possessed by any existing corporation, and grant to these persons, in their corporate character, the franchise, not already possessed by any corporation or person, of building and operating a specified line of railway, it would seem to need no argument to prove that by such a grant a new railway corporation is called into existence.
If the act in question, therefore, had been an independent and substantive act, granting to the persons therein named the franchise to be a corporation, and proceeding as in the act of 1861, there would be no room for doubt that such an act, if permitted to operate according to its terms and its true intent and meaning, would have created a new corporation. Does it make any difference that the act in question
If an act had been passed purporting to amend the act of 1857, by adding to it certain provisions incorporating the persons named in the act of 1861, under the name of the Lake Superior & Mississippi R. Co., and granting to such corporation all the powers and immunities claimed by the defendant under the act of 1861, it would be very evident that this so-called amendment of the charter of the Nebraska and Lake Superior Railroad Company was really a new charter, creating a new corporation, under a new name, as much so as if the act of 1861 had, by the two first sections, provided that certain persons should be a corporation, with power to build the railroad the defendant has built, and had then provided that such corporation, in the prosecution of the enterprise for which it was chartered, should possess all the powers and privileges, and be subject to all the restrictions and limitations, granted to or imposed on the Nebraska and Lake Superior R. Co. by the act of 1857. This mode of importing the provisions of the charter of one company into that of a company subsequently created, was formerly common in New York; but it was never claimed that the two corporations thereby became identical.
If the amendatory act had proceeded to repeal the first and other sections of the act of 1857, it is difficult to conceive wherein such an amendment would differ from an original and independent act containing the same provisions. It would have been, in substance and effect, a repeal of the charter of the former company and the creation of a new corporation.
In the case at bar the amendment has been made in a different form. Instead of repealing in terms the two first sections of the act of 1857, and adding to the act a provision incorporating the persons therein named, under the corporate name of the Lake Superior and Mississippi R. Co., the former act “is hereby amended and continued so as to read
Were it not that important pecuniary interests, as well as the validity of an act of the legislature, are involved in this case, we might well have been content to rest our con
Of the cases cited by the defendant’s counsel, the first, (New Central Coal Co. v. George’s Creek Coal Co. 37 Md.
People v. Marshall, 1 Gilman, 672, cited by both parties, was a quo warranto against the Bank of Illinois. This bank was chartered by special act of the territory of Illinois, in 1816. In 1818, a state constitution was adopted, containing the following provision: “There shall be no other banks or monied institutions in this state but those alreadjr provided by law, except a state bank and its branches, which may be established and regulated by the general assembly of the state, as they may think proper.” In 1835, and prior to the expiration of the territorial charter, that charter was extended for twenty years; and in 1837, the capital stock was increased. It was contended for the state that these acts were a violation of the provision quoted; but the court held that this provision recognized the banks then in existence, and permitted their continuance; and that they were only mentioned therein, in order to except them out of the limitation imposed upon the power of the legislature in reference to the creation of other banks. The court also say (p. 683) that “the act of 1835 purports to be a continuation of an old charter, and is such in fact. The distinction between a new charter and the renewal of an old one is fully recognized by authority. The continuance of an old charter is not the creation of a new corporation; and it is said that, in pleading, the latter act need not be noticed, the validity and authority of the corporation being derived from the
It is suggested by the defendant’s counsel, as a point to be considered in this case, that upon the faith of the act of 1861 and acts amendatory thereof, several millions have been invested in the securities of the defendant, under circumstances which estop the state from disputing the legal existence of the defendant as a corporation. If the act of 1861 were not clearly unconstitutional, it would be our duty to uphold it; and any doubt that might exist should be resolved in favor of its validity. And where rights of property have been acquired, under and on the faith of an act of the legislature which is drawn in question, the court, in a doubtful case, may sometimes not improperly allow its judgment to be influenced by a consideration of the disastrous consequences which a decision adverse to the validity of the act would have upon vested rights acquired under it. People v. Marshall, 1 Gilman, 687-9. If this were a doubtful case, and the effect of our decision would be to invalidate the bonds issued under the act of 1861 and the amendatory acts, it might be urged, on the one hand, that these rights should be regarded and protected, and, on the other hand, it might be said that it was the duty of the bondholders, before purchasing, to enquire into the validity of the legislation under which the bonds were issued, (The Floyd Acceptances, 7 Wall. 666 : Marsh v. Fulton C that, upon such enquiry, they could not have failed to learn, not only that the act of 1861 was invalid, but also that, prior to the passage of the acts authorizing the issue of bonds by the corporation organized under it, its invalidity had been clearly set forth in an able and lucid opinion of the attorney general of the state, prepared at the request of the senate of the state, furnished to that body on January 31, 1865, and in the same year published pursuant to an act of the legislature. Opinions of Attys. Gen., p. 463.
In respect of the plaintiffs’ right to the injunction prayed in the complaint, this case is clearly within the rule laid down in Harrington v. St. P. & S. C. R. Co., 17 Minn. 215; and see Com. v. Pittsburgh & C. R. Co., 24 Penn. St. 159.
Order reversed.
Note. — Having readied tlie conclusion that the act of 1861 is invalid, after much consideration, and Ave need not say with much reluctance, and the case being of such importance, and the question and the interests involved being of
Upon the first argument of this case, the point which, as then presented, seemed to the court to be decisive, was not argued by counsel as fully as its importance would justify; and for that reason, and because of the magnitude of the interests, both public and private, in
Having heard the re-argument, which was conducted on behalf of each party with an ability and thoroughness of research seldom equalled, we are satisfied that there are some considerations bearing on the point in issue, to which the court, in its first examination of the case, did not attribute sufficient importance; and we have arrived at a conclusion the reverse of that entertained on such first examination.
The main question is, Was the act of 1861 unconstitutional ?
It is claimed that it was, because: First. If operative, it created a new corporation, and was therefore repugnant to § 2, Art. 10 of the constitution. Second. That if it assumed merely to transfer the ownership of an existing corporation from those in whom such ownership was then vested, without their consent, to the persons named in the act, it was in violation of the provision, in both the federal and state constitutions, which prohibits the passing of any law impairing the obligation of contracts.
When the legislature enacts any law, we must presume that it has considered and become satisfied of its constitutional power to pass the act; and although there is no longer any doubt of the authority and duty of the court, when the question is properly presented, to declare such acts invalid, if repugnant to the constitution, yet it is due to the legislature, a co-ordinate branch of the government, that such authority should be exercised only when absolutely necessary, and with extreme caution. Chief Justice Marshall, in Fletcher v. Peek, 6 Cranch, 87, states (p. 128) that “the
The law before us is not altogether free from difficulty; but after a careful consideration of its provisions, we do not 1‘eel that certain conviction of its incompatibility with the constitution which would justify us in setting it aside.
That the state legislature may, within a certain limit, pass laws to amend acts of the territorial legislature creating corporations, is clear. Were § 2, Art. 10, not in the constitution, the power of the state legislature to pass amendments to such laws, so long as the amendments should not impair the obligation of any contract, would be unquestionable and unlimited. Such amendments, only, are within the prohibition of that section as attempt to do, or as would have the effect to do, what that section prohibits. Any amendment which, if operative, would in effect form a corporation, (except for municipal purposes,) would clearly be repugnant to the section, because it would attempt to do what that section forbids ; but the power of the legislature, in respect to such territorial laws, so long as it does not attempt to form a corporation, is not affected by the prohibition.
The act of 1861 is entitled “An act to amend an act entitled ‘ An act to incorporate the Nebraska and Lake Superior Railroad Company.’ ” The first clause of section 1 reads: “That the act of the territorial legislature of Minnesota, entitled an act to incorporate the Nebraska and Lake Superior Railroad Company, approved May 23, 1857, be and the same is hereby amended and continued so that it shall read as follows.” It purports to be, is expressly
It is possible for the legislature, in such case, to act dishonestly ; to intend the creation, by such means, of a new corporation; to attempt to do what the constitution forbids, under the pretence and color of doing what it permits. We have no right, however, to assume that it had any such motive. When it in substance declared that the provisions of the act of 1861 were intended to apply only to the corporation created, provided for, and regulated, by the act of 1857, ire are bound to presuume that such avrs its honest intention.
And if there Avas no actual intention on the part of the legislature to create a new corporation, instead of providing for and regulating one already existing, then no such corporation Avas created by the act, unless the character of its provisions is such that, if permitted to be operative, the act did necessarily, in legal effect, create a neAv corporation, •although such effect Avas not in the mind of the legislature.
That a legislature might, in such a case, misapprehend the legal effect of the act passed by it, just as it might mistake as to the limits of its constitutional poAver, is possible. It might, Avitliout intending to create a new corporation, attempt such radical and essential changes in the constitution of an old one as to amount to the creation of a new one; and if such must be the necessary result of such changes, the act must bo just as. clearly Avitliin the constitutional prohibition as though the legislature actually intended the result, and fully understood that such Avould be the effect of its act.
There being no actual intention by the legislature to ere-
The changes made by the act of 1861, which are claimed to have brought about that result, are in the names of the corporators, and in the route or line of railroad, that is, in the enterprise or business, which the corporation was created and authorized to prosecute.
It is not urged that a change of name alone would affect the identity, nor can it be seriously insisted that a change in the corporators has that effect. When a corporation is created, it remains the same, whatever changes in its ownership may take place, whether it is held and owned by the original corporators, or by stockholders — by one set of stockholders, or by another.
If an act of the legislature should provide for a corporation to be known by a name not held by any previously existing corporation, and should name, to organize and set it in operation, corporators not named'in any other act of incorporation, it would be evident that the corporation so provided for was a new one. But if the act itself showed that the name was intended to be given to a corporation previously existing, in place of one formerly held by it, and the corporators named in the act were intended merely to be substituted in the stead of former corporators of an existing corporation, the change would certainly be of very little, if any, importance in determining whether a new corporation was necessarily created by such an act. An essential change in the enterprise or business of the corporation would be of much more importance, — indeed, might be decisive.
The enterprise described in the act of 1861 is substantially included in that described in the act of 1857. The general business, that of constructing and operating a railroad, is the same in both. The difference claimed is that, in the act of 1857, the company was authorized to construct and “to alter the line thereof, without changing the eastern terminus, a railroad with one or more tracks or lines of rails, to com
To locate the eastern terminus at the point indicated in the act of 1861 Avas certainly within the authority contained in the act of 1857. Had the act of 1857 confined the company to the line via Cheyenne City, the act of 1861 would have authorized, and the line as actually constructed would be, a Arery great departure, Avhether sufficient to render the latter act obnoxious to the constitutional objection is unnecessary to determine; for that line Avas not imperative, but the company Avas given, by the act of 1857, its choice of that line, “or such route as the corporators may deem most expedient,” and this authorized the company to cross Avith its line any part of the territory between the termini mentioned in the act, the eastern of Avhich was Lake Superior, or the Bay of Superior, orthe Bay of St. Louis, and the western, the Nebraska line, no point on that hue being indicated in the act. Under this large discretion in the selection of its line, Ave do not think the company was bound to select a perfectly straight line, or, the general direction being westerly, to folloAv, at all points on the line, a westerly direction between the two termini.
The line as actually constructed is, we are satisfied, part ■of the route Avhich the company might have selected for its road, had the act of 1861 not been passed. It is not in a
That, by the act of 1861, the company might terminate its line at the Mississippi river, and was authorized only to-construct it to the Minnesota river,- instead of to the Nebraska line, is, I think, (though the majority of the court do not attach the same degree of importance to it,) the-most serious objection to the act. We have already -expressed our opinion that, when a corporation is created for the purpose of prosecuting an enterprise the extent of which is defined by the act of incorporation, the legislature may relieve the corporation from the prosecution of a part of the enterprise as originally defined, without changing the character of the corporation; so, also, the legislature, with the consent of the corporation, may limit the exercise of the corporate franchise to only a part of the original enterprise, without any such effect. The difficulty consists in determining how far the legislature may go in that direction, ■without creating what is substantially a new corporation. We entertain some doubt whether, in this case, the legislature has not gone quite as far as a strict construction would permit; but we do not feel that certainty of conviction upon it, which, under the rules of interpretation by which courts must be governed in interpreting statutes in respect to their constitutionality, would authorize us to declare this act void.
The legislature, at an early day in the history of the constitution, adopted, and has since acted on, a construction of it which would support the act in question. It has repeatedly, and in the most solemn manner, recognized the validity of that act; and, such recognition appears to have been, until this case arose, acquiesced in by the people. Many acts relating to other corporations, and having some, at least, of the objectionable features contained in the act before us, were passed at an early day, and have been repeatedly recog
It is not meant by this that a clearly and obviously erroneous construction of tbe constitution may become controlling by legislative adoption, but that, in a ease of doubt, the court may and ought to resort for aid to tbe acts of the legislature and tbe people, in construing tbe provision of tbe constitution alleged to have been violated. And we think such practical construction is entitled to greater weight, when, in rebanee upon it, great enterprises, in which tbe state as well as individuals are interested, have been undertaken and carried out, and vast sums of money expended or invested in such enterprises.
Some confusion of ideas has arisen in tbe argument from presenting tbe spectacle of two distinct railroad corporations, (assuming that this defendant is one,) with different names, different corporators and different lines of road. This confusion arises from assuming, or taking it for granted, that tbe act of 1857, as originally passed, still continues in force. But that act was, by tbe act of 1861, in effect repealed so far as related to tbe name of the corporation and tbe names of some of tbe corporators, and modified so far as related to tbe route or line of road, and continued only so far as not repealed or modified. After the act of 1861, (assuming tbe assent of the original corporators,) there was no corporation known as tbe “Nebraska and Lake Superior Railroad Company,” no corporation having tbe same body of corporators, and none with precisely tbe same route. This defendant must, of course, derive' its existence from the act of 1857, but not from those parts of that act which were repealed, only from so much of it as was continued in force. Tbe legislature found in force an act under which there was an existing, unorganized corpora
If a new name and a new set of corporators could be given to the corporation, and its line of road modified to the extent provided in the act of 1861, without making it a now corporation, (and, as we have already shown, we cannot hold that it might not be done,) then the only remaining objection to the constitutionality of the act is that it impaired the obligation of a contract. On this objection, we understand the argument, stating it briefly, to be, that as the substituted corporators acquired no rights in the existing corporation by the act of 1861; as the ownership and right to organize the corporation created by the act of 1857 could not be thus vested in them, because the act of 1861 impaired the obligation of the contract between the territory and the original corporators, the new corporators could not, and therefore did not, organize that corporation, and the body then organized is not that corporation, and if a corporation at all, must be so by virtue of an act passed since the adoption of the constitution.
The act of 1861 assumed to authorize the new corporators to organize and put in operating condition the then existing corporation. They have, assuming to act by that authority, and no other, perfected the organization. That the legislature might, with the consent of the old corporators, confer this authority upon the new, cannot be questioned. The presumption is that an act of the legislature is valid, until the contrary ajipears ; and when the consent of certain persons is necessary to the validity of such act, the presumption of validity includes the presumption of such consent, unless, perhaps, in a proceeding to which such persons aro
The further point is made, in support of plaintiffs’ claim for an injunction, that the proceedings under which the company attempted to take plaintiffs’ property are without force, for the reason that, in the act under which the proceedings were taken, no provision is made for appeal and trial by jury.
That act is the act of March 6, 1868, amending § 8 of the act of 1861. The section as thus amended provides, in substance, that in order to have the damages ascertained, so that the company may take lands for its road, the company shall file a petition in the court, praying for the appointment of commissioners to assess the damages, give notice of the time and place of hearing; that upon proof of service of the notice being filed, the parties shall be deemed in court, and the court to have jurisdiction of the property and parties, and shall appoint three competent, disinterested persons as commissioners, and fix a time and appoint a place at which they shall meet and organize and hold their first meeting ; and that notice of such meeting shall be entered in the minutes of the court; that the commissioners shall be sworn, and shall meet at the time and place specified in the order, and when met, and all present, may proceed to hear the proofs and allegations of the parties, and are authorized to administer oaths to witnesses before them, and shall keep minutes in writing of all their proceedings, in which they shall enter the time and place of their meetings and adjournments, the names of parties appearing before them, and whether in person or by attorney, the substance of the testimony of witnesses examined before them, and all disputed questions which shall be submitted to them, and their
The proceeding is, from the time of the notice served, a judicial proceeding, subject at all times to the control of the court; and it is, therefore, not liable to the objection which the court held to be fatal in Langford v. Commissioners of Ramsey Co., 16 Minn. 375.
In those cases where the constitution does not give an absolute right to a trial by jury, it is held to have been the intention of the people, in adopting the constitution, to leave the mode of trial to the discretion of the legislature. The constitution of the state, when it was adopted, found the right existing in a certain class of cases, and provided that it should remain inviolate. The only change it made in the right previously existing, consisted in extending it to all of that class, without regard to the amount involved. Before that time, the guarantied right existed only under the federal constitution, and extended only to cases of that class where the value in controversy should exceed twenty dollars. In the federal constitution, the class of cases in which the right is preserved, is defined as “ suits at common law;” in the state constitution, as “cases at law.” Prior to the adoption of the latter constitution, the statute gave the right of trial by jury in all cases at law, whatever amount might be involved.
In Whallon v. Bancroft, 4 Minn. 109, the court called this statutory right ‘ ‘ a qualified right, and not an absolute and indefeasible right;” and said that had the state constitution provided only that the right of trial by jury should remain inviolate, the legislature might have restricted it to cases where the amount exceeded twenty dollars, that is, to cases where, prior to that time,' the right was absolute; and that
Proceedings under the right of eminent domain, to ascertain the compensation to be paid in tailing private property for public use, have never been considered as actions oleases at law, within the meaning of constitutional provisions preserving the right of trial by jury; and except where such proceedings are expressly mentioned in state constitutions, the decisions are uniform that they do not come within the constitution. Dronberger v. Reed, 11 Ind. 420 ; Haverhill Bridge v. County Com’rs., 103 Mass. 120 ; Livingston v. The Mayor etc., 8 Wend. 85 ; Penn. R. Co. v. Lutheran Congregation, 53 Penn. St. 445; Petition of Washington Road Co., 35 N. H. 134; Buffalo Bayou etc. R. Co. v. Ferris, 26 Tex. 588.
We conclude, therefore, that while the legislature must provide an impartial tribunal to ascertain the amount of compensation, and give the parties interested an opportunity to be heard before such tribunal, it may determine what the tribunal shall be, whether a jury, a court without a jury, or commissioners selected by a court.
The order appealed from is affirmed.