151 Ind. 139 | Ind. | 1897
Lead Opinion
This action was brought by appellant to collect the penalty provided for the violation of an ordinance, in refusing to pay the fare of five cents prescribed by said ordinance for riding upon a car of the Citizens’ Street Railway Company. Appellee filed an answer admitting the passing of the ordinánce, and its validity, and that he had ridden as alleged, and had refused to pay the fare of five cents demanded, but justified such refusal under the act approved March 6, 1897 (Acts 1897, p. 201), amending section 9 of the law providing for the incorporation of street railways, and adding supplemental sections thereto, alleging that he had tendered the full fare of three cents as provided by said act, but the conductor in charge of the car refused to receive the same, appellee claiming that after the passage of said act, the ordinance was of no validity, except so far as it required the payment of three cents in place of five as prescribed by said ordinance. To this answer appellants replied, denying the validity of the act in question, for the reason that the legislation was purely local and special, and therefore invalid, because in violation of the constitutional provision on that subject. Appellee’s demurrer to this reply was sustained. Appellant refusing to plead further, judgment was rendered in favor of appellee.
■ The act authorizing the incorporation of street railway companies was approved Jan. 4, 1861. Acts Spec. Sess. 1861, p. 75. Section 5450, et seq., Burns’ R. S. 1894 (4143, et seq., R. S. 1881). Section 9 of said act being section 5458, Burns’ R. S. 1894 (4151, R. S. 1881), provides that “The directors of such company shall have power to make by-laws * * * for regulating the fare of said road or roads.” In this act the legislature made no provision for the regulation of the fares, but left the same to the discretion of the board of directors until the legislature should see fit to make other provisions. The act of 1897 re-enacts said section, with a proviso “that in cities in this State having a population of 100,000 or more, according to the United States census of 1890, the cash fare shall not exceed three cents for any one trip or passage upon the street railroad or roads,” with transfer. It is insisted by appellant that the act of 1897 is unconstitutional because it impairs the obligation of a contract. Counsel for appellant do not point out any contract, the obligation of which is impaired by said act. If it is the contract under which the street railway company took possession of the streets of Indianapolis and constructed its tracks, it is sufficient to say that the city was not authorized to enter into any contract which would prevent the legislature from legislating upon the subject of fares. It is settled law that the legislature has the power to reasonably regulate the rates of fare for the transportation of passengers within the State on street railways. Hockett v. State, 105 Ind. 250, 258, 259; Central
Appellant had the power to prescribe the terms upon.which, and the time for which, a street railroad company organized under said act of 1861 should occupy the streets of said city; but such contract, when made, was subject to the right of the legislature to amend or repeal said act at its discretion, and no contract made by the city with a street railroad company could prevent the exercise of such power by the legislature. It is'clear, therefore, that said act
It is next insisted by counsel for appellant that although the right to amend or repeal said act was reserved by the legislature, said amendment is a local and special act, and is therefore in conflict with section 13 of article 11 of the constitution, which
Counsel for appellant seem to understand that this court held in Mode v. Beasley, 143 Ind. 306, that the words “last preceding census,” refer only to the last census taken before the passage of the act, and not to any census that may be taken after the act was passed. The rule is otherwise. Such words in a statute refer to the census last taken, whether before or after the passage of an act, unless the contrary appears in the act itself. So that, although a city or town may not have the required population when the act was passed, yet at any timé in the future when any census taken after the passage of the act shows that the necessary population has been acquired, such city is governed by the provision of the act; that is, when a statute provides that all cities or towns of a named population “according to the United States census,” or “according to the last preceding United States census,” shall be governed by the provisions of the act, then all cities or towns, as they acquire the requisite population, as shown by any census thereafter taken, will be governed by the act, the same as if they had the required population as shown by the last preceding census when the law was enacted.
What was said in Mode v. Beasley, supra, in regard to the city of Indianapolis, and the charter by which it, was governed, was by way of illustrating what constituted a local or special law, and the difference between such laws and a general law; and any statements concerning the act approved March 9,1891 (Acts 1891, pp. 137-197), being a local law, or that municipal corporations are not within the prohibition of said section 13, article 11, were not necessary to the deter
When the present constitution of 1851 went into effect on November 1, 1851, there were a great number of corporations in this State which had been created by special acts. The legislature, commencing with its first session of 1852, after the constitution took effect, again and again, by special acts, enlarged the powers and privileges of such corporations, but in no instance created a corporation by special act, thus recognizing the difference between the creation of a corporation and the regulation of a corporation already in existence. There sat as members of the legislature passing such acts many persons who had been members of the constitutional convention, and' who were familiar with the provisions of the constitution and its intended reforms and changes. No one questioned the right of the legislature to pass such special acts, and for over forty-five years the power assumed by the legislature has never been challenged, but has been acquiesced in by the State and people. This practical construction is influential. French v. State, ex rel., 141 Ind. 618, 628; Hovey v. State, ex rel., 119 Ind. 386; City of Terre Haute v. Evansville, etc., R. R. Co., 149 Ind. 174, and cases cited.
It is one thing to create a corporation, bring it into existence, and quite another, as an existing corporation, to regulate its conduct and relations as to other corporations and persons. It has been decided in many cases that, when a corporation 'has been created, a special act regulating it, without changing the
In Wilkins v. State, supra, this court, by Elliott, J., said: “The provision which it is asserted the act violates, is this: ‘Corporations, other than banking, shall not be created by special act, but may be formed under general laws.’ It cannot,. with the faintest tinge of justice, be affirmed that the simple delegation of authority to appoint three men to perform duties affecting the public is the creation of a new corporation. “Changes of infinitely more importance have been held not to create a new corporation. Wallace v. Loomis, 97 U. S. 146; Attorney General v. North American L. Ins. Co., 82 N. Y, 172;. Southern Pacific R. R. Co. v. Orton, 6 Sawyer. 157, 32 Fed. 457. The general rule is thus stated by a late writer: ‘A special act'of the legislature regulating an existing corporation, or granting to it new privileges, without altering its character or affecting the charter contract, would not be in violation of the letter nor .the
The North American Life Insurance Company was formed under general laws. In 1866 (Session- Laws of 1866, Vol. 2, p. 1237, Chap. 576), it was enacted by the legislature that the company might make special deposits of its securities in the insurance department, and in the case of the Attorney-General v. North American Life Insurance Co., supra, the validity of this .act was questioned, it being claimed that it was in “violation of section 1 of article 8, but the act was held constitutional, the Court, Earl, Judge, saying at p. 182: “The plain answer to this contention is, that-the act did not create a corporation, but simply regulated a corporation previously in existence.” In Southern Pacific R. R. Co. v. Orton, supra, the legislature of California had passed an act authorizing the Southern Pacific Railroad Company to change the line of its road,’ accept a congressional grant of land, and construct its road as provided in the act of congress incorporating the Atlantic & Pacific Railroad Company; and it was contended that the act was unconstitutional, being in violation of the provision of the constitution.
In the St. Paul, etc., Ins. Co. v. Allis, supra, the appellant had been organized as a mutual insurance company, and afterwards a law was passed making it an exclusively stock company. It was contended that that was in violation of the clause in the constitution prohibiting the formation of corporations by special act. But the court said: “We think it is not obnoxious to that clause of our constitution which forbids the formation of corporations by special act. Its effect is only to authorize the company created by the acts of 1853 to exercise its subsisting franchise of carrying on the business of fire and marine insurance in a manner different from that prescribed by the original charter. This is by no means the formation of a new corporation, for both the franchise of corporate existence as well as the general business and purpose of the incorporation as prescribed by the original
In Cent. Ag., etc., Ass’n v. Alabama, etc., Insurance Co., supra, a corporation was intended to be organized under the general law authorizing the formation of private corporations; but certain requirements of the statute had not been complied with, without which
It was, however, correctly said in Morawetz on Corporations, section 12: “But it is plain that a constitutional provision cannot be avoided and practically annulled by a subterfuge. A special law altering the charter of an existing corporation, and practically changing it, must therefore be deemed a violation of a constitutional prohibition against the creation of ■corporations by special act. If this were not so, organizations formed under the general laws might be treated merely as the rough material out of which ■corporations might afterwards be fashioned at pleasure, under special acts of the legislature, and the constitutional prohibition would become an empty form.”
By the áct in question no new corporate power or franchise was created. The directors could regulate the fare after the amendment the same as before, subject to the common law limitation of reasonableness, ■except that, in cities of a population of 100,000 or ■more, according to the census of 1890, the maximum fare could not exceed three cents. This is a mere regulation of an existing corporation, and even if said act is, as contended by appellant, local and special, it is not in conflict with said section 13 of article 11 of the ■constitution, which only forbids the creation of cor
Said act, by amending section 9 of the act of 1861 did not render said last named act either local or special. Corporations may be organized under the law of 1861 for the construction of street railroads in the cities and towns within the State, the same now as before the amendment of section 9. All the cases cited by counsel for appellant in support of their contention, except San Francisco v. Spring Valley Water Works, 48 Cal. 493, and Central Trust Co. v. Citizens Street R. R. Co., 80 Fed. 218, are based upon constitutional provisions radically different from the provisions of the constitution of this State. The cases named are against the great weight of authority, and interpolate into the constitution, words the people have not placed there. Besides, the case of San Francisco v. Spring Valley Water Works, supra, was decided by a divided court, and is in conflict with the decision of that court in California State Telegraph Co. v. Alta Telegraph Co., 22 Cal. 425.
Much is said by counsel for appellant about the evils of local and special legislation, but we cannot amend or change the constitution, or read into it what is not there written, merely to avoid either certain or supposed danger.' We can only declare that the constitution means what it says. It follows that the power
It has been uniformly held by this court, .since Gentile v. State, 29 Ind. 409, that whether an act relating to a subject not enumerated in section 22 of article 4, can or cannot be made by general law, as required by section 23 of article 4, is a question to be determined exclusively by the legislature, and not by the courts. Woods v. McCay, 144 Ind. 316, 322, and cases cited; Mode v. Beasley, 143 Ind. 306; Pennsylvania Co. v. State, 142 Ind. 428; Young v. Board, etc., 137 Ind. 323; Bell v. Maish, 137 Ind. 226; State, ex rel., v. Kolsem, 130 Ind. 434; Hovey v. Foster, 118 Ind. 502; City of Evansville v. State, ex rel., 118 Ind. 426, 4 L.R. A. 93; Wiley v. Corporation of Bluffton, 111 Ind. 152; Warren v. City of Evansville, 106 Ind. 106; Johnson v. Board, etc., 107 Ind. 15; Kelly v. State, ex rel., 92 Ind. 236; Mount v. State, ex rel., 90 Ind. 29; Vickery v. Chase, 50 Ind. 462; State, ex rel., v. Tucker,46 Ind. 355; Clem v. State, 33 Ind. 418. When, therefore, a local or special law is enacted upon a
.It follows, that the act approved March 8,1897 (Acts 1897, p. 201), so far as involved in this case, is constitutional and valid. Said act rendered the ordinance regulating the payment of a fare of five cents invalid and of no effect. Appellee was entitled to be carried for the fare of three cents fixed by the act in controversy, and was not liable for a refusal to pay more than that, for the reason that the ordinance requiring the payment of a fare of five cents was rendered invalid by said act. Judgment affirmed:
Rehearing
On Petition for Rehearing.
In this case the principal contention was that the act of March 6, 1897, amending section 9 of the act to provide for the incorporation of street railroad companies, was inoperative and void because in contravention of section 13 of article 11 of the constitution of this State. In arriving at the conclu
After carefully considering, not only the arguments presented in this case, but also the arguments and opinion referred to, and all the light that we could obtain upon the question, we were constrained to hold that the contention that the legislation in question was in violation of the constitution of this State was without just foundation, and that the act was in harmony therewith. The question thus presented to us was purely one arising upon the construction of the constitution of this State.' Such a question, when presented to this court, is one that it must decide upon its own judgment as to the requirements of the state constitution. While in search of assistance and information to enable us to decide such a question correctly, it is eminently proper and necessary that we should examine, weigh, and consider, not only the arguments of counsel, but also the adjudications of courts and the opinions of judges, in other jurisdictions, upon similar or analogous provisions of this or other constitutions, and give to them such weight as in our opinion they are justly entitled to; but, after that has been done, the responsibility rests upon us, and us' alone, and that responsibility cannot be shirked, evaded, or avoided.
What the constitution of the United States and the laws of Congress, or treaties made thereunder, require, is to be finally determined by the Supreme Court of the United States; and its decisions, when made upon such questions, are binding upon the courts in every state, “anything in the constitution or
The interpretation and construction of the statutes of this State, and whether the same have been enacted in accordance with the requirements of the constitution of this State, and are or are not-in violation of any provision of the constitution of this State, however, are questions to be finally determined by this court, and by this court alone. The rule is that the construction put upon the constitution and laws of a state by the court of last resort of such state, and the decision of such court that a law has or has not been passed in conformity with the requirements of the constitution of such state, or that the same is oris not in violation of the constitution of such state, are binding upon the federal courts and will be adopted by them. Black on Interpretation of Laws, pp. 378-381, 427-429; 23 Am. & Eng. Ency of Law, pp. 37-40, and cases cited; Cooley on Const. Lim., pp. 18-23; Black’s Const. Law., p. 140; 35 Central Law Journal, 322; Goodnow v. Wills, 67 Iowa 654; May v. Tenney, 148 U. S. 60, 64, 65; Balkam v. Woodstock Iron Co., 154 U. S. 177, 187-189; Pittsburgh, etc., R. W. Co. v. Backus, 154 U. S. 421; Leeper v. Texas, 139 U. S. 462, 467; Morley v. Lake Shore, etc., R. W. Co., 146 U. S. 162, 166-169; Bauserman v. Blunt, 147 U. S. 647, 652-659; Oakes v. Mase, 165 U. S. 363; Forsyth v. Hammond, 166 U. S. 506, 518-520; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 688; Merchants, etc., Bank v. Pennsylvania, 167 U. S. 461, 462; Water Power Co. v. Water Commissioners, 168 U. S. 349, 357; Backus v. Fort St. Union Depot Co., 169 U. S. 557, 566; Dibble v. Bellingham Bay Land
Since the decision of this case, and the filing of the petition for a rehearing, onr attention has been called by appellant’s brief on said petition to the decision of the United States Circuit Court in the case of Central Trust Co. v. Citizens’ Street R. W. Co., 82 Fed. 1, in which the learned judge, who had arrived at a different conclusion before the announcement of our opinion upon the question, adhered to his original conclusion, notwithstanding the opinion announced by this court. We have also examined the opinion, upon appeal, in the Circuit Court of Appeal’s, 83 Féd. 529, and have carefully re-examined the question presented in this regard, not simply as a matter of courtesy to a high court, but constrained thereto by the duty which is cast upon us by the' presentation of the petition for a rehearing. We have done this, not alone because of the importance of the question, but because of the misfortune to the community and the parties especially interested in a' correct decision of the question, that this court should differ from the Circuit Court of the United States upon the question, Upon such re-examination, we are constrained to adhere to our original opinion, that the act in question, even if local and special, is not in contravention of any of the provisions of’the constitution of this State, as contended by the appellant. As the power to amend or repeal the act of 1861 was expressly reserved in section 11 of said act, and as the act of 1897
In arriving at the conclúsion that the act of 1897 is not in contravention of any provision of the constitution of this State, it has not been necessary for-us to consider any questions arising under the constitution of the United States. As to -such questions, we should be constrained to follow the adjudications, of the Supreme Court of the United States, if any, without in any wise considering whether such a construction should or should not commend itself to our independent judgment. But upon the requirements of the constitution of this State, we are not at liberty to set aside or discard our own views because of the fact that they do not meet with the concurrence or approbation of any other court, however high, or any judge, however eminent. We do not deem it necessary to add anything further to what we have heretofore said upon the-questions involved, but adhering to the opinion originally pronounced in this case, the petition for a rehearing is overruled.
