4 Ind. 495 | Ind. | 1853
This was a proceeding by writ of mandamus, issued from the Vigo Circuit Court against said board of trustees. The writ commands them forthwith to pay to the relator 1,417 dollars out of the net tolls andrevenues of that portion of said canal between the Ohio state line and Lafayette, inclusive, or show cause to the contrary thereof.
The sum demanded by the writ is the interest on said stocks from the first of January, 1853, to the first of July in that year. It also appears, that between these periods, the said trustees kept an account of the tolls and revenues of, and the expenditures on, that part of the canal between the Ohio state line and Lafayette, and they amounted to more than a sufficiency, over defraying necessary expenses, repairs and outlays, to pay the full interest of 5 per centum per annum on all certificates of stocks that had been issued on account of that class of original bonds surrendered and known as Wabash and Erie canal bonds.
But the trustees, in answer to the wi’it, allege that the canal is unfinished. To complete it, the outlay of a large amount of money is still required. For the work already done in its construction, they are now indebted, and it is their duty to apply all said tolls and revenues to the payment of such indebtment, and upon the work required for its completion. That besides the stocks issued on the surrender of the original Wabash and Erie canal bonds, there is a variety of other stocks issued under the operation of the acts referred to. And it is not intended by these acts that they shall pay from said tolls and revenues the interest on the class of stocks as claimed by the relator, in exclusion of other stocks therein specified, &c.
A demurrer to the answer was overruled, and the proceeding dismissed, &c.
Whether the Court erred by overruling the demurrer, must depend upon the construction to be given to said acts. By the eighth section of the original act, “the bed of the Wabash and Erie canal and its extensions,” &c.,
The scale of distribution set forth in the section just referred to, is altered by the tenth section of the supplemental act; but that section contains a provision “saving the just rights of the holders of bonds outstanding and known as the Wabash and Erie canal bonds as provided for in the said eighth section.”
The relator, in accordance with the terms of the law, surrendered a number of bonds of the class designated in the above-recited proviso. Then, does the case presented by the record entitle him to 5 per cent, interest on his certificates of stock, out of the net tolls and revenues of the first-named portion of the canal, from the 1st of January, 1853? The proviso constitutes an exception to the general provisions of the act. It evidently discriminates
The judgment is reversed with costs. Cause remanded, &c.