Unity v. Burrage

ERROR to the Circuit Court of the United States for the Southern District of Illinois.

On Feb. 8, 1853, an act of the legislature of Illinois was approved, entitled an act to incorporate 'the Decatur and Indianapolis Railroad Company.' It incorporated the company named for the purpose of 'constructing, completing, and operating a railroad from the town of Decatur, in Marion County, in the State of Illinois, and thence in a direct line, upon the most eligible route, to the east line of the State of Illinois.'

The third section of the act is as follows:--

'Said company is hereby authorized and empowered to unite and form a junction with the Indiana and Illinois Central Railway Company, or any other company which is or may hereafter be organized in the State of Indiana terminating on said line; and also, to unite and consolidate with the said Indiana and Illinois Central Railway Company, upon such terms and conditions as the directors shall mutually agree upon; and in the event that said companies shall consolidate, then and in that case there shall be but thirteen directors on the whole line of road so consolidated, and the number to reside in each State shall be determined as in the case of consolidation.'

Afterwards, on Feb. 20, 1854, an act of the same legislature was approved, entitled 'An Act to amend the act entitled 'An Act to incorporate the Decatur and Indianapolis Railroad Company, approved Feb. 8, 1853."

The preamble and first section of this act are as follows:--

'Whereas, under and in pursuance of the authority conferred in the above-named act, the said Decatur and Indianapolis Railroad Company, after their organization, united, consolidated, and merged their stock with the stock of the Indiana and Illinois Central Railway Company, forming a single corporation by means of such consolidation under the name and style of the 'Indiana and Illinois Central Railway Company,' therefore,

'SECT. 1. That the said Indiana and Illinois Central Railway Company, as existing under the said consolidation, is hereby declared to be entitled to hold, enjoy, and possess all the property, rights, franchises, and powers held, enjoyed, and possessed by either of said original corporations prior to their said consolidation, fully and effectually, to all intents and purposes, and to be entitled to have and hold all the rights, powers, and privileges conferred, or to be hereafter conferred, by law upon railroad corporations, organized under the act entitled 'An Act to provide for a general system of railroad incorporations,' approved Nov. 5, 1849.'

The last section reads as follows: 'This act shall be deemed and taken to be a public act, and shall be liberally construed in all courts of justice, and shall take effect and be in force from and after its passage.'

On Feb. 22, 1861, an act was passed, entitled 'An Act to extend the time for completing the Indiana and Illinois Central Railway Company.' The preamble of this act is as follows:--

'Whereas the Decatur and Indianapolis Railroad Company were legally incorporated under an act entitled 'An Act to provide for a general system of railroad incorporations,' in force November 5, 1849; and whereas said Decatur and Indianapolis Railroad Company afterwards united and consolidated with the Indiana and Illinois Central Railway Company, on the fourth day of May, A. D. 1853, in compliance with the provisions of an act entitled 'An Act to incorporate the Decatur and Indianapolis Railroad Company,' in force February eighth, 1853, and of an act entitled 'An Act to amend an act to incorporate the. Decatur and Indianapolis Railroad Company,' in force February twelfth, 1854, whereby said Decatur and Indianapolis Railroad Company became and was named and styled 'The Indiana and Illinois Central Railway Company;' and whereas said Indiana and Illinois Central Railway Company, in compliance with the provisions of the 44th section of an act entitled 'An Act to provide for a general system of railroad incorporations,' in force November 5th, 1849, began the construction of its roads and expended thereon ten per cent on the amount of its capital within five years after its incorporation.'

The body of the act extended for ten years from and after April 26, 1863, the time for putting in full operation the Indiana and Illinois Central railway.

The forty-fourth section of an act entitled 'An Act to provide for a general system of railroad incorporations,' in force Nov. 5, 1849, is as follows:--

'If any such corporation shall not, within five years after its incorporation, begin the construction of its road, and expend thereon ten per cent on the amount of its capital, and finish the road and put it in full operation in ten years thereafter, its act of incorporation shall become void.'

On March 27, 1869, an act was passed supplementary and amendatory of the act of Feb. 20, 1854, above mentioned, entitled 'An Act supplementary to and amending an act entitled 'An Act to incorporate the Decatur and Indianapolis Railroad Company,' approved Feb. 8, 1853.'

The act legalized an election held by the voters of Macon County in favor of the issuing of bonds of said county, to the amount of $60,000, to aid in building the Indiana and Illinois Central railway, and an election subsequently held by the voters of the same county in favor of a subscription by the county of $40,000 to the capital stock of the said railroad company, and of the issuing of the bonds of the county to pay for said stock, and in favor of subscriptions by said county to three other railroad companies therein named, and the issuing of the bonds of the county to pay therefor.

Sect. 2 of the act provides as follows:--

'The several townships in counties where township organization has been adopted, lying on or near to the line of said railroad, are hereby authorized to subscribe to and to take stock in the said Indiana and Illinois Central Railway Company. Elections may be held in any such township upon the question whether such township shall subscribe for any specified amount of stock of said county, not exceeding one hundred thousand dollars, whenever a petition for that purpose shall be presented as hereinafter specified.'

The subsequent sections of the act prescribe the mode of holding elections mentioned in the second section, and the levy and collection of a tax by the township authorities of the townships which voted to take stock in said railroad company, to pay the interest and principal on the bonds issued in payment thereof.

The last section extends the time for the completion of the railroad of the said Indiana and Illinois Central Railway Company to July 1, 1875.

On April 16, 1869, the legislature passed an act entitled 'An Act to fund and provide for paying the railroad debts of counties, townships, cities, and towns.' This act provides for the registration, in the office of the auditor of public accounts of the State, of bonds issued by counties, townships, &c., in aid of or to pay for stock in railroad companies.

Afterwards, on Sept. 13, 1869, and, as it was claimed, in pursuance of the authority conferred by the act of March 27, 1869, at a special election held on that day, a majority of the legal voters of Unity Township, in the county of Piatt, voted in favor of a subscription of $14,000 to the stock of the Indiana and Illinois Central Railway Company, and an issue of the bonds of the township sufficient to pay for such stock.

Pursuant to this vote, fourteen bonds of the township, for $1,000 each, all dated May 12, 1873, with interest coupons attached, were duly executed by the officers of the township.

The bonds, principal and interest, were made payable to the Indiana and Illinois Central Railway Company, or bearer, at the American Exchange National Bank, New York.

They contained the following recital:--

'This bond is one of a series of fourteen bonds, of one thousand dollars each, numbered from one to fourteen inclusive, issued under and by virtue of the acts of the General Assembly of the State of Illinois, entitled 'An Act supplementary to and amending an act entitled 'An Act to amend the act entitled an act to incorporate the Decatur and Indianapolis Railroad Company,' approved February 8th, 1853, in force March 27th, 1869, and an act entitled 'An Act to fund and provide for paying the railroad debts of counties, townships, cities, and towns," in force 16th April, 1869, and in accordance with the vote of the electors of said township of Unity, at a special election held in said township on the thirteenth day of September, A. D. 1869, under the provisions of said acts, and in accordance therewith, and the faith of said township is hereby pledged for the payment of said principal sum and interest as aforesaid.'

The plaintiffs, being the holders of these bonds, brought this suit against the township on the coupons which fell due May 12, 1878, and May 12, 1879.

The declaration having averred the execution of the bonds (designating them as promissory notes), with the interest coupons attached, proceeded as follows:-- 'And each of said promissory notes recites that it is issued under and by virtue of a law of the State of Illinois, entitled 'An Act supplementary to and amending an act entitled 'An Act to amend the act entitled an act to incorporate the Decatur and Indianapolis Railroad Company,' approved Feb. 8, 1853,' in force Marcy 27, 1869.

'And under a low of the State of Illinois entitled 'An Act to fund and provide for paying the railroad debts of counties, townships, cities, and towns,' in force 16th April, 1869. And in accordance with the vote of the electors of said township of Unity, at a special election held in said township on the thirteenth day of September, A.D. 1869, under the provisions of said acts and in accordance therewith.

'And the plaintiffs further aver that said promissory notes have been duly registered in the office of the auditor of public accounts of the State of Illinois, pursuant to said act of April 16, 1869, as from the certificate of said auditor of public accounts attached to each of said promissory notes will more fully appear.

'That the plaintiffs are the bearers of the coupons for interest on said promissory notes which fell due on the twelfth day of May, A.D. 1878, being seven coupons of one hundred dollars each. And also of the fourteen coupons annexed to said promissory notes and of even number therewith, each of which said coupons became due and payable on the twelfth day of May, A.D. 1879, making in all the sum of twenty-one hundred dollars.

'And the said defendant has failed to provide funds for the payment of said instruments of interest at the American Exchange National Bank, New York. And has utterly neglected to pay the same, although thereunto often requested.'

The township filed a general demurrer to the declaration, which was overruled, and on its electing to stand by the demurrer and refusing to plead, judgment was rendered in favor of the plaintiff, which, by agreement of parties, was for the principal of the bonds and the interest up to June 10, 1880, amounting in all to $17,816.

This writ of error is prosecuted to reverse that judgment.

1. The act under which the bonds purport to have been issued is a private act. It is not specially pleaded, and the court cannot take judicial notice thereof. Leland v. Wilkinson, 6 Pet. 317; Covington Draw Bridge Co. v. Shepherd, 20 How. 227; Beaty v. Lessee of Knowler, 4 Pet. 152; ''Society for Prop. of Gospel v. Young, 2 N. H. 310; Perdicardis v. Bridge Company, 29 N.J. L. 367; Bank v. Wolliston'', 3 Harr. (Del.) 90; City Council v. Plank Road Co., 31 Ala. 76; King v. Doolittle, 1 Head (Tenn.), 77.

2. When the consolidation was completed, the old corporations were destroyed and a new one was created. The powers were granted to it as if the old companies had never enjoyed the franchises which has been conferred by their respective charters. Shields v. Ohio, 95 U.S. 319; Railroad Company v. Georgia, 98 id. 359; Clearwater v. Meredith, 1 Wall. 25; McMahan v. Morrison, 16 Ind. 172; Ohio v. Sherman, 22 Ohio St. 411; Shields v. Ohio, 26 id. 86. As the consolidation of the two companies operated to destroy the charter of each and annul the contract between the State and the corporators, neither of the original corporations was then in existence, or had power to accept the act of March 27, 1869.

That act does not profess to be an amendment of the charter of the Indiana and Illinois Central Railway Company. It is 'An Act supplementary to and amending an act entitled 'An Act to amend the act entitled an act to incorporate the Decatur and Indianapolis Railroad Company,' approved Feb. 8, 1853.' The Indiana and Illinois Central Railway Company, being a new and distinct corporation, with franchises directly conferred upon it by the legislature, under a different name from that company (Private Laws 1861, p. 499), had no authority to accept or reject the attempted amendment of a surrendered charter.

3. Sect. 23 of art. 3 of the Constitution of 1848 provides that 'no private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title.'

The amendatory act is therefore void. O'Leary v. County of Cook, 28 Ill. 534; Fireman's Benevolent Association v. Lounsbury, 21 id. 511; Neifing v. Town of Pontiac, 56 id. 172; Prescott v. City of Chicago, 60 id. 121; Ottawa v. People, 48 id. 233; Middleport v. Life Insurance Co., 82 id. 562.

4. The Decatur and Indianapolis Railroad Company was incorporated under, and derived its powers from, an act entitled 'An Act to provide for a general system of railroad incorporations,' in force Nov. 5, 1849 (Private Laws, 1861, p. 499). By the provisions of the special act in force Feb. 8, 1853, it was required to organize in full compliance with the statutory provisions providing such general system.

This ancillary and amendatory act of 1869 attempts to change the corporate powers conferred by the general statute on the company. The legislature had no power to do this. It is an attempt, not to amend or change that statute, but, on the contrary, to leave it in full force and effect as to all other companies organized under it, and to extend the power of this corporation by a special act.

Mr. W. J. Henry for the plaintiff in error.

Mr. James Dinsmoor, contra.

Mr. JUSTICE WOODS, after stating the case, delivered the opinion of the court.