41 Ind. App. 416 | Ind. Ct. App. | 1908
This is a suit instituted in the Randolph Circuit Court by the appellant against John E. Peight, Joseph E. Lowes, Charles M. Anderson, Ralph E. DeWeese, Walton B. Gebhart, Theodore Shockney, Mortimer A. Munn, Edward P. Roberts, - Abbott, John- Doe, Richard Roe, John Smith, Chase Construction Company, appellees, to enjoin said appellees from entering upon appellant’s right of way at Main street in the town of Farmland, and constructing thereon a crossing for the appellees ’ interurban railway, and from taking any steps to interfere with appellant’s tracks and railway property.
The substantial averments of the complaint involved in this consideration are to the effect that appellees Lowes, Peight, Anderson, DeWeese and Shockney pretend and confess to be stockholders in, and officers of, a pretended electric railway company; that they have in their employ the other appellees; that all of said appellees are engaged in constructing a contemplated electric railway; that appellant is a railway corporation organized and existing under the laws of the State of Indiana, and operates a railway from Indianapolis, Indiana, to Cleveland, Ohio; that appellant’s said roadway passes through said town of Farmland, and has for forty years been operated at grade across Main street in said
There are numerous other averments in said complaint unnecessary to set out, as they do not affect the question presented. To this complaint appellees answered in their own behalf to the effect that they have not been themselves engaged in the construction of any railway of any nature or kind at the point named by the appellant in its complaint, or at any other point, and that they are not for themselves doing any of the things or threatening to do any of the things alleged by appellant in its complaint, but say that appellees Lowes, Feight, Gebhart and Anderson are president, secretary, treasurer and vice-president, respectively, of the Dayton & Muncie Traction Company, a corporation duly and legally incorporated by virtue of the consolidation, under the laws of said states, of the Greenville & Union City Traction Company, a corporation duly and legally incorporated under the laws of the state of Ohio for the construction and operation of an electric street railway in the city of Greenville and in the villages of Hill Grove and Union City in said state, and for the connection of said systems in said cities and villages by an interurban electric street railway from said city of Greenville through said villages of Hill Grove and Union City, terminating at the state line in said Union City, and the Winchester & Muncie Traction Company, a corporation duly incorporated under the laws of the State of Indiana for the purpose of constructing, owning and operating a system of electric street railways in the cities of Union City, Winchester and Muncie, and in said town of Farmland, and of connecting said systems in said cities and towns by eleetrie interurban and suburban street railways between said cities and towns from said state line at the point of the terminus of said Greenville & Union City Traction Company’s street railway over the streets of said Union City, Winchester, Farmland and Muncie, and connecting the same by interurban and suburban railways between said cities
The answer sets out in full two ordinances, one, the original ordinance, and the other supplemental thereto, granting said Dayton & Muneie Traction Company the right so to use the streets of the city of Farmland. The answer then sets out the statutes of the state of Ohio, authorizing the consolidation of traction companies in Ohio with traction companies of other states. A demurrer was filed to this answer, which was overruled. Appellant filed an amended reply in two paragraphs: (1) By general denial; (2) an affirmative paragraph which avers in substance that there is no such corporation as the Dayton & Muneie Traction Company and never was; that at the time of said consolida
The questions presented upon the exceptions reserved by appellant to the various rulings of the court may be stated in two propositions: First, that the Dayton & Muncie Traction Company was not a corporation either de facto or de jure; second, the street and interurban railway being constructed along Main street and over appellant’s tracks and right of way was a commercial railway, and hence an additional servitude on the street, and had no right to enter upon or pass over the property of appellant without consent, or condemnation and compensation. It is the theory of appellant that said Dayton & Muncie Traction Company was not a corporation, by reason of the fact that it had not been properly incorporated under the laws of this State, and hence appellees were acting in their individual capacities; that said pretended corporation was incapable of being sued or brought into court in any manner; that the franchise granted said pretended corporation by the town trustees of Farmland was a nullity, for the reasons (1) -that the grantee had no existence; (2) that by the terms of said franchise it was not effective until accepted by the grantee; that, notwithstanding said franchise was apparently accepted by said Dayton & Muncie Traction Company, it was, in effect, no acceptance, since said company had no existence and could not make a valid acceptance. It would appear then, if appellant’s contention that said Dayton & Muncie Traction Company had no corporate existence either de facto or de jure, that the injunction prayed for should have been granted, since all of the rights of appellees under their own averments, and the evidence, to construct said railway along
Appellees meet this contention with the proposition that the Dayton & Muncie Traction Company was in fact a cle jure, or at least a de facto, corporation, and, being such, its authority to act as a corporation cannot thus be collatérally assailed.
This case was afterwards affirmed by the Circuit Court of Appeals. Toledo, etc., R. Co. v. Continental Trust Co. (1899), 95 Fed. 497. In the course of the opinion Judge Lurton, speaking for the court, says: “The fact that there might be under the law of Illinois a consolidated company composed of an Illinois corporation and corporations of other states, with the powers claimed by the Toledo, St. Louis & Kansas City Railroad Company, would constitute it a de facto corporation, although the particular companies thus united might not possess all of the qualifications required by the Illinois statute. A defect in the qualification of some of the constituent companies might affect the de jure character of such an organization, and, when challenged by the state, demand a judgment of ouster. The test of a de facto corporation is this: Was there a law under which there might have been a de jure corporation of the kind,
It is clear under the above authorities that said Dayton & Muncie Traction Company was a de facto corporation, and its power to act as such cannot be questioned in this proceeding. It is therefore unnecessary for us to determine whether said traction company was a corporation de jure. It must therefore be assumed in this case that said traction company had all the powers and authority, and was entitled to the rights and privileges, of a consolidated street and interurban railway, which, under the law of its creation, gave it the rights and privileges of a domestic street and interurban railway. §5686 Burns 1908, Acts 1899, p. 378, §2.
There are various other matters presented, but they all depend upon the central questions here discussed and decided. It is urged that this court should consider and determine the character of thq crossing that should be made in the event we should decide appellees had the right to cross. The lower court did not determine this question, and it does not appear that it was considered and passed upon. Whether such court might have done so is unnecessary to decide. The record does not show such an unusual condition as to warrant us in assuming that a crossing may not be made reasonably safe in the ordinary modes.
Judgment affirmed.