Newspaper Page Text
4 THE INDIANAPOLIS JOURNAL, FRIDAY, APRIL 20, 1900. THE DAILY JOURNAL FRIDAY, APRIL 20, 1S00. Telephone Clin. Easiness OfTJce 2C3 I Editorial Rooms 86 TER31S OF StllSCIt I PTIO.N. DAILY BY MAIL. rl!y only, one month J 71 Ia!l- only, three months 2 rt?y er.iy. one yar S.f0 railv. including Sun-lay, one year lMrt fjunday only, one yar 2.00 WHEN FURNISHED BY ARENTS. Dally, per wppk, by carrier 15 ts Funday. r Inxl copy ct Xally and Sunday, per werk, by carrier.... 20 cts WEEKLY. Ter year H-W Reduced Rnlei to Club. .Fubscrlb with any of our numerous agents or end subscription to the JOURNAL NEWSPAPER COMPANY, r ' IndlnnapoIIs. Ind. Persons sen.ilr.ir the Journal through th malls In the United States should put on an eiicht-re paper a ONE-CENT posta- utamp: on a twelve tT sixten-pase paper a TWO-CENT postage . stamp. Foreign iotare Is usually double these rates. All communications Intended for publication In ff M nintr must In -.rr1r In rr 1 V attention. h accompanied by the name ana address or. tne i writer, Rejected manuscripts ill not be returned Unless postage Is Inclosed for that purpose. Tlin INDIANAPOLIS JOURNAL Tan b found at the following places: JCKW YORK Astor House and Fifth Arenue Hotel. CHICAflO-Palnvr House, P. O. News Co.. 217 Dearborn street. CINCINNATI J. R. Hawley & Co.. 151 Vine trt. ZyOrisviLLE C. T. Dcerlng. northwest corner of Third and Jfreron street, and ixmisviue i Book Co.. 2U Fourth avenue. PT. LOUIS-Unlon News Comrany. Union Depot .WASHINGTON. D. C nisc House, Ebbltt House and Willard'a Hotel. Lord Roberts has at least one advantage ever any other officer In the British army. Jf.he makes mistakes there Is no superior o censure him. There could be no better evidence of the vitality of the Republican party In Indiana than the extraordinary efforts the oppo sition and Independent press are making to misrepresent It. General Manderson, of Nebraska, fo j long In the Senate from that State, is I spoken of as a candidate with Mr. McKIn- I ley. He has the ability and the experience I to qualify him. After all. Senator Hoar says that he will I tont.nuo .o vote .h UepubUcan ..cKet. but It would have been much better if he had rot put the name of Aguinaldo among the world's champions of freedom. . . . . . nounced defection and bitter defeat. These Hot be too hard on generals who have made consequences have thus far been so in tnlstakes. The War Office itself is severely vItJ.ble tha.t the lessons they teach cannot rcored for the delay necessitated by the Uritlsh lack of transport and horses. To ask Governor Mount If he would ac- fcept the chairmanship of the convention by I t i i- a ml it. i I nomination from the floor, after the action f the state committee, was a silly per- of doubt and temptation they neglect such lormancc. It la impossible to have con- ün examinatIon, and If this discloses a ten jormancc n is lmpossioio 10 nae con- dency In party control to subordinate the ceived any other answer than a vehement I negative. - The Important announcement comes from the village of Holland, Mich., that Montagu ."White, the Transvaal representative in the United States, has addressed a largo meet ing of Boer sympathizers there and that IWebster Davis has been invited to speak. It is to be hoped Holland will not decide Upon forcible Intervention. It is claimed that the mills of the Ameri can Steel and Wire 'Company were closed by the president. John W. Gates, in order to Influence the stock market and not on account of any exigency in supply and do- mand.-It is regarded as the most out- rageous attempt in that line since Gould snd Fisk wrtTkcd the Erie railroad. It Is Given out that Mr. Gates will be compelled to resign. If he docs not the combination and rly protest.' V preliminary to the re of which he Is the head will suffer. It has buke the should administer if false lead- too many competitors or possible compcti- tors. , While the Journal believes that It would I have been better to have made Governor I Mount chairman of the convention, for the I reason that all of the candidates favored J tls selection and hundreds of party men all I . over the State believed it was the proper I thing to do, it does not hesitate to express I the belief that Mr. Hanly will be an im- partial and intelligent presiding officer. I Jle was In Congress one term, which made I him familiar with parliamentary law. 3Jen who are best acquainted with him, likc Governor Mount, hold him In high cs- teem. I S President McKinley's request for an ex tension of time In which to complete the appointments of officials for the Porto F.lcan government evinced his desire not to be hurried In a matter of so much im portance. Under the law as it was passed all the appointments would have had to be made by May 1, giving less thin two vreeks for consideration, correspondence and action regarding a large number of ap pointments. It Is Important that the Presi dent should have ample time to secure first-class men for the positions, and the extension of time to Aug. 1 is clearly in the interest of good government. In the meantime the military officers will continue to discharge the duties as they are now do ing. The report of Noble C. Butler, special waster in chancery, in the case of the State against the Tcrre Haute & Indianapolis Railroad Company, published in this issue Of the Journal, will be a disappointment to those who have been led to believe that the State would realize a large sum out of the suit. The claim on which the suit was founded was based on certain provisions In the charter of the company which, it was contended, constituted a contract bind- ing the company to pay the State a cer tain proportion of its earnings after a cer tain condition should arise. The claim amounted to three million dollars, but. unfortunately for the State, the special commissioner flnd3 and reports that the condition on which the claim la based never did occur. Those who wish fuller informa tion regarding the matter are referred to the commissioner's report, which is evl dent'y the result of a careful consideration of thfc facts and the law bearing upon them, his conclusion being that the State Is not entitled to recover from the com pany any sum whatever. Probably there was never such a com motion caused by an Innocent mistake, a mere inadvertence, as in the case of the Invitation sent the Duke of Arcos to at tend the Chicago Dewey celebration. Of J tourse it was unfortunate that the bpan- i:h minister ehould be invited to attend , . A1 -L .,, m a czrauon in conor ox me ainaung oi a Spanish fleet, but It was hardly an occa sion for his high wrath. Then. Mayor Har rison, who was In no way responsible for the error, had to apologize, the State De partment had to explain, our minister at Madrid had to apologize to the Spanish government, and much ink had to be wasted, all because a thoughtless clerk. acting under a general order to send Invi tations to the representatives of all for eign government?. Inadvertently included the Spanish minister. It must be admitted, however, that after the matter was ex plained the minister acted very gentleman ly and declared the Incident completely closed. The local directors of the National G. A. It. Encampment at Chicago say they will send an Invitation to the .Duke of Arcos to attend on that occasion as the guest of the G. A. R and as Spain had nothing to do with the civil war they think he will accept. 3111. "CLEVELAND'S LETTER. Ex-President Cleveland's letter to the Brooklyn Democratic Club probably has more pouueat significance man appears at fi"t glance. It Is unusual for ex-Prcsi- dents to make a formal declaration regard ing current politics, and as. this Is the first that Mr. Cleveland has made since his retirement from office there must be a motive behind It. He could have declined . an Invitation to the banquet with tl.e . usual expression of regrets, whereas he - 1 - . . . . , . . . writes a letter of considerable length in which he makes some suggestions regard ing party management and leadership which seem calculated to bring him once more to the front In politics. With Cleveland's comments on the al leged faults and misdeeds of the Republic an party we have no particular concern. As a Democrat, and candor requires It to be added an honest and consistent one, It Is his business to condemn the Republican 'party, though he must admit that It repre sents the Jeffersonian Idea on the money question. The most suggestive part of his letter is that which warns the Democratic party that If It is to succeed at all It must be by its own strength and merit, and notx through the shortcomings or misdeeds of the Republican party. This part is worth careful reading. He says: Our principles are so simole and thev accord so well with the honest American fÄffelfiiSTthS IS? S understood by the Democratic masses. As a result of this there has never been a time when false leadership of our nartv and a departure from simple Democratic laitn nave not been quickly discovered and 1 ruthlessly rebuked by listless support. pro be disregarded without Inviting calamity. ine neauniuiness or our party may well be questioned when It shrinks from such an examination of its position as will enable it to avoid disaster by keeping in a course or safety under the guidance of true Democracy. Therefore those who claim to ioi lowers oi i nomas jerrerson will fall to discharge a nimn HfVf hVJ principles of pure Democracy and to dis trust their conquering power these condi tions should not continue without a brave and early Democratic protest. Read between the lines this means that the Democratic party was beaten four years ago by the defection of its own members, owing to the false leadership of the party and its desertion of true Dem ocratic principles. This, of course, is a di rect slap at Bryan-and Bryanlsm. The extract shows further that, in the opinion of Mr. Cleveland, if the Democratic party promulgates the same doctrines and falls under the ame leadership this year that It dld four years !t win beaten again. ana win deserve to be. Finally, Mr. Cleve land thinks that if, on careful oxamlna tIon conservative Democrats find that the Party is llkc,y to fal1 under the control of fal5e lea(!crs thy should enter "a brave crs &et onoI of the party in spite of th0,r Protest. Coming from such a man as Mr. Cleve land this letter doubtless means all it says and perhaps more. It certainly means that he thinks it would be better for the country and for the Democratic party that it should be beaten again If it falls under false leadership as it did In 1S06, and It may mean that Mr. Cleveland him gelf would accept a nomination for Presi dent on a platform of Jeffersonian Democ racy. He is a man of convictions and courage, and even if he did not expect to be elected he might be satisfied with per- forming a patriotic duty in compassing the defeat of a false Democratic leader and administering another needed rebuke to his party for abandoning true Democratic prin ciples. Grover Cleveland in 1900 would re ceive a great many more votes than Palmer and Buckner did four years ago. and his candidacy might prove the means of bringing back to solid ground a party that Is now floundering in the sloughs of Populism and Bryanlsm. BUBBLES IN THE AIR. Seaaon for Political Oratory. Jones I don't fcee how Admiral Dewey could stand Rryan as a running mate, any way? Brown Oh, Dewey is used to wind. To n Peach Illoasom. In thy pink beauty, bloom most fair. So fresh in tint, in texture rare; How can the most discerning eye Forecast the odious dried-peach pie? Ilartl on the Rnbalynt. She What a hideous noise . thooe cats are I making! He Yes; It reminds me of pessages 1 ve heard you sing from the "Persian Garden." Of Labor. "After all. only two things make an Indus trious man happy." What, for Instance V "No work at all, or so much work that he I can't do it." True Campaign Alacrity. "What did that politician say at first blush when the office was proffered him?" "At first blush? Lota you know about poli tics. There wasn't any blush about It; he I tabbed it." Offaprlnar. Jones I was with Preacher Hoklns to-day vhrn we met his little boy. Brown Anything happen? Jon Happen? As soon as the younster saw his father he shouted. "Hello, old sport!" Condition of (he lhl Kappa Pal. COLUMBUS, O.. April 19.-The reports presented to the Phi Kappa Psl biennial conclave to-day showed the fraternity to be In a flourishing condition. Orra E. Mon nett. of Bucyrus. general secretary, re ported that there are now 39 chapters, 27 alumni associations and h,ZT members. Twenty-five fraternities have chapter bouse The value of real estate Is JlOI.oOO ?,nd f rronal property 30,000. George E. I Barker, of Boston, Mass.. general treas- I urer. reported J3.C0O surplus In his hands. T0"' lhf delegates attended a ball at I the Chittenden Hotel given in their honor by the local alumni association. V ALALIA'S VICTORY MASTER'S REPORT IX IMPORTANT CASE FILED YESTERDAY. Finds There I Nothing Dae the State on It t'lnlni for Three Million Dollar. THE STATE WILL APPEAL UM OF THE MOST IMPORTANT CASES EVER LITICiATED IX INDIANA. Complete Report of the Finding: of Noble C. Dutler, Special Maa ter in Chancery. Noble C. Butler, special master In chan cery, In the case of the State of Indiana ex rel. William A. Ketcham vs. Terre Haute &. Indianapolis Railroad Company, tiled his findings and report in the Superior Court of Marion county late yesterday afternoon. lie finds as a conclusion of law from all the facts reported In the case that the State is not entitled to recover from the railroad company any sum whatever. The case, on account of the large amount of money Involved, was probably ,the most Important ever litigated in Marlon county or in the State. The suit was brought by the State of Indiana, on relation of William A. Ketcham. against the Terre Haute & Indianapolis Railroad Company, known as the Vandalla, for an accounting and for the recovery of between J3.0U0.0Ö0 and H.C00.000 alleged to be due the State for the use of the common school fund. The cause of action arose out of the construction which the State authorities gave to Sec tions 22, 23 and 24 of the charter of the com pany, passed by the Legislature in 1847. Section 22 authorized the company to charge such tolls and freights for the transportation of persons, commodities and carriages as shall be for the Interest of the company, and to change, lower or raise the same at pleasure. Section 23 provided that when the aggregate amount of divi dends declared should reach the full sum invested in the road, with 10 per cent, per annum, the Legislature was to have the right to fix the tolls and freights, and that the surplus after paying 15 per cent, to the stockholders should be paid over to the treasurer of state for the use of the com mon schools of the State. The road oper ated under its charter until the year 1873, when it abandoned the same and Incorpo rated under the general law of 1S52. In 1875 a suit was instituted by the at torney general against the road for an ac counting and for the recovery of about $3,000.000. The railroad company filed a demurrer to the complaint of the State, which was sustained, and on appeal to the Supreme Court the judgment was affirmed. The present suit was brought about two years ago, and Judge Carter, of the Su perior Court, sitting with Judges McMas ter and Leathers, overruled the demurrer and plea of former adjudication of the rail road company and referred the case to Noble C. Butler as special master to take the testimony and report the same, with his findings of fact and conclusions of law. The master commenced taking testimony in the case early In October of last year, and the case was continued during inter vals until about Jan. 13. The arguments commenced on Feb. 15 and lasted ten days. It was said to have been one of the great est legal battles ever made In any court in the State. The State was represented by such eminent counsel as William A. Ketch am. Ferdinand Winter nnd Roscoe O. Haw kins, of this city, and Robert S. Taylor, of Fort Wayne. The defendant was repre sented by John G. Williams, who has been connected with the Vandalla road for many years; S. O. Pickens, the local counsel of the Pennsylvania Railroad Company, and Lawrence Maxwell, jr., of Cincinnati. If the court approves the report of the special master it is probable that excep tions will be filed by thfc attorneys for the State and the case will be appealed to the Supreme Court. When Governor Mount was apprised of the decision in the case last evening he was greatly surprised, but said he had nothing to say. W. A. Ketch am. Ferdinand Winter, S. O. Pickens and R. O. Hawkins, attorneys on both sides of the case, were all absent from the city last evening, and it was impossible to obtain an expression from them in regard to any luture action In the case. Attorney Horace E. Smith, law partner of R. O. Hawkins, In speaking or the case last night said the decision rendered by the special master did not end the case by any means. Said he: "When this case comes up before the Superior Court for a confirma tion of the findings of the special master. you will see that the whole case will be gone over again. If we lose there we will certainly carry the case up to the Supreme Court of the State, and if necessary even to the Supreme Court of the United States." Mit. Dl'TLEIt'S REPORT. Processi of KenHnnlng of the Special Master In Chancery. Following Is the full text of the finding of Noble C. Butler, special master in chan eery, made to the Judges of the Superior Court of Marion county: "This cause comes to me under an order of reference from the Superior Court of Marlon county upon the complaint and three paragraphs of the answer, which set up the general denial, a former adjudica tlon and the statute of limitations as to so much, of the complaint as seeks to re cover moneys claimed to be due prior to Sept. 19, 1S61, and a reply In two para graphs, including a general denial to the answer of the statute of limitations and a special reply to the answer of a former ad judication. The complaint is founded upon a contract, which is claimed by the plain tiff to exist under and by virtue of Sec tions 22 and 23 of the special charter for the Incorporation of the defendant, which was enacted by the General Assembly of the State of Indiana, and approved on Jan 26, 1SI7, and was duly accepted by the de fendant, and charges the defendant with fraudulent acts and representations where by the plaintiff has bten misled and de frauded of its rights and a recovery upon the contract has been delayed and pre vented. In brief, the contract which Is claimed to have its existence in these sec tions Is that tho corporation, in consid eration of a grant of exemption from tho legislative control of its tolls and freights until the aggregate amount of Its divi dends should equal the full sum Invested In its plant and property and li) per cent, per annum on the same, promised to pay the State on the happening of that event and thereafter a total sum ot money which Is estimated In the prayer of the complaint a 13.000.000. The provisions oi Sections 22 and 23 are as follows: "Sec 22. The corporation may chs.ige and receive such tolls and freights for the transportation of persons, commodities and carriages on said read, or any part there of, as shall be for the interest of said com pany, and to change. lower or raise at pleasure: Provided, That the rates es tablished from time to time snail be posted in some conspicuous place or places on said road. "Sec. 23. That when the aggregate nmount of dividends declared shall amount to the full amount invested and 10 per cent um per annum thereon, the legislature may so regulate the tolls and freights that not more than 15 per centum per an num shall be divided on the capital em ployed, and the surplus profits, if any, after paying the expenses and reserving -uch proportion as may be necessary for future contingencies, shall be paid over to the treasurer of state for the use of common schools, but the corporation shall not be compelled by law to reduce the tolls and freights so that a dividend of 15 per centum per annum cannot be made; and it shall be the duty of the corporation to furnish the Legislature, If required, with a cor rect statement of the amount of expendi tures and the amount of profits after de ducting all expenses: - which statement shall be made under the oath of the offi cer whose duty It shall be to make the same. COUNSEL IN THE CASE. On the hearing before me the plaintiff was represented by Messrs. William A. Ketcham, Robert S. Taylor, Ferdinand Winter and Roscoe O. Hawkins, as his at torneys, and the defendant was repre sented by John G. Williams, Lawrence Maxwell, jr., and Samuel ,'0. Pickens, as his attorneys. The evidence- consists of the books Ahd records of the corporation and the testimony of George C. Duy, John E. Cleland and Joseph T. Fanning, con cerning the accounts and entries in them. end William R. Harrison. All of the tes- timony of the witnesses, with tables and' statements which were prepared from the books by the witnesses, are herewith re turned into court; the testimony of the witnesses being contained in two volumes marked Exhibits A and B, and the tables and statements being contained In a single volume marked Exhibit C. The reference to me In this case Is not for an accounting only. It requires me-to find and determine whether an account should be stated be tween the parties, and it also requires me to find and determine a just and proper basis for the statement of an account be tween them, if any should be made. "In the performance of these duties It Is necessary for me to have an adequate un derstanding of the whole controversy be tween the parties; and the order of refer ence expressly provides that I shall find and report all the facts that are Involved in it with my conclusions of law thereon. The controversy has its origin In the twenty-second and twenty-third sections of the special charter, under and by which the defendant was incorporated, and Is essentially a controversy over the con struction which shall, be given those sec tions In overruling the demurrers to the complaint and the reply to the third para graph of the answer the Superior Court rendered opinions which cov?r some of the points that are involved In the construction of the charter, but there is further con troversy as to the precise meaning and ap plication of these opinions. The primary object in any construction of these sections Is to ascertain the Intention of the Legis lature in the enactment of them. It Is Impossible for me to ascertain the inten tion of the Legislature in the enactment of particular words and phrases In these sections without having previously ascer tained the intention of the Legislature In the enacement of them as a whole. Its in tention in the enactment of these sections as a whole pervades and dominates every part of them. If it be my duty to ascer tain the intention of the Legislature in, the enactment of any part of these sec tions, it is equally my duty to ascertain its Intention In the enactment of them as a whole: and the performance of that duty, which involves an exercise of judi cial functions, should be governed by those rules of law and equity that have been established by the' weight of authority. RULES CONSTRUCTION. "A familiar rule of construction requires that a charter, as far as it Is a grant of powers and franchise should be construed strictly against the grantee, and that all doubts should be solved against such grantee. Another rule of special stringency is that an Intention to grant immunity from taxation, or exemption from the leg islative coaitrol of tolls and freights, should never be imputed to a .Legislature If It be possible to avoid doing so by any reason able construction of the charter. Covington Turnpike Company vs. Sandford, 164 U. S. 572, 57. &S9, and cases cited. These are gen eral rules for the construction of all char ters, and they are founded In public policy. The-y are applied by the courts to the con struction of all charters because the puo 11c Interests are, on the whole, protected by a uniform and consistent application of them. As applied to the present case they do not . mean that the charter should bo construed one way If the corporation were claiming an exemption from legislative con trol, and another way. if the htate nas a pecuniary Interest in. ' conceding that It has such an exemption'. They do not mean that in all suits where: the. State a a party every doubtful' question,, shall be solved in favor of the State, ny more than they mean that in all suits where a corpora tion is a party every doubtful question shall be solved against the corporation. They relate to the subject matter of con troversies and not to the parties In them. "As applied to the case at bar these rules mean that if a reasonable construction of Section 22 and 23 can be adopted which avoids or excludes any theory of nn irrev ocable grant of exemption from the legis lative control of tolls and freights for an indefinite or any period of time, by tho State to the corporation, that construction must be adopted. In order to meet the re quirements of these" rules it is wholly un necessary that any strained or unnatural construction of tho language that is used in Sections 22 and 23 should be adopted, and such a construction of It would ho. In admissible. .The most natural and obvious construction that can be put upon the lan guage of these sections fully satisfies the requirements of these rules. Section 22 au thorizes the corporation to regulate its tolls and freights, and Section 23 provides that the Legislature may regulate them on the happening of the contingency and with in the limits therein described, and pro vision Is made in the latter section for the disposition of any surplus that may remain after such regulation Is made; and that section also contains a provision that the regulation of tolls and freights by the Legislature shall not reduce them below the minimum fixed thereby, which, if con strued by itself and without reference to another provision in Section 36, is a con tract which binds the State absolutely. As construed together these section mean that the authority which is given the cor poration in Section 22 is or may be limited under Section 23; or, in other words, that the corporation is authorized to regulato its tolls and freights until the Legislature shall regulate them. "But the State contends that these sec tions constitute a contract whereby the Legislature was prohibited from regulating the tolls and freights of the corporation until the happening of the contingency which is described in Section 23, by rea son of a grant of exemption from the leg islative control of tolls and freights until the happening of that contingency which forms a part of the contract, and is the consideration for the liability upon which the present suit is Instituted. FURTHER INQUIRY NECESSARY. "It Is therefore necessary to make fur ther inquiry into the nature of the author ity which was given by Section 22 and tho nature of the limitation which was placed upon that authority by Section 23. The next question for present consideration is, accordingly, the question whether the au thority which is conferred by Section 22 and limited by Section 23 is an irrevocable grant of the power to regulate tolls and freights for an indefinite or any period of time by the State to the corporation. If there be such a grant it must be found In Section 22, for Section 23 is nothing more than a limitation upon the preceding grant, and that is evidently the theory of the complaint, as appears from the following allegation, namely: 'By said charter said corporation was given the right to charge and receive such tolls and freights for the transportation of persons, commodities, etc., on said road as might be deemed for the best Interests of the company, and to change and lower them at pleasure, except only as to the provision in Section 23 of said charter, reserving a power In the Gen eral Assembly to regulate such tolls, etc' "In other words, the provisions of Section 22 must be regarded as an absolute grant of the power to regulate tolls and freights, which is limited as to the duration and extent of the same by the provisions of Section 23, which are in the nature of a condition subsequent. The provisions of Section 23 are, in that view or the case, technically and strictly a condition subse quent, instead of a limitation, for. by their very terms, the happening of the condi tion does not of itself extinguish the right of the corporation under the grant, but simply makes it iKssibIe for the State to put an end to that right and resume its own right of regulating tolls and freights on the happening of the condition or at any time afterwards. If such a grant cannot be found in the words of authority in Sec tion 22 it will hardly be discoverable in the words of condition or limitation in Section 23. But the provisions of Section 22 are almost identical with the provisions of other charters which have been con strued by the Supreme Court of the United States in cases where it was held that such provisions uo not constitute an irrevocable grant of exemption from the legislative control of tolls and freights or any con tract on that basiä; and while, us a general rule, the decisions of the highest court of a State In the construction of its statutes are binding on the federal courts, there is an exception to that general rule in all cases where it is a question whether a statute 1 a contract or not. In thoae cases the federal courts always determine that question for themselves, as well as the further question whether the contract Is protected by the constltuional provision against any Impairment of the obligation of It by the State. (Mobile & Ohio Rail road Company vs. Tennessee; 153 U. S.. 4So 403, and cases cited.) The decisions of the Supreme Court of the United States in de termining whether any particular provi sion of a charter constitutes a special con tract between the State and the corpora tion. Irrespective of that sense in which the whole charter Is regarded as a con tract, are therefore binding on the State courts, and It Is important that due con sideration should be given them. SOME OTHER AUTHORITIES. "In Stone vs. Farmers' Loan and Trust Company, (116 U. S., 307-325), the corpora tion was authorized to fix, regulate and receive the tolls and charges by them to be received for transportation of persons or property on their railroad, etc. In Stone vs. Illinois Central Railroad Company, (116 U. S.. 247-351), the charter provided 'that the president and directors be and they are hereby authorized to adopt and establish such a tariff of charges for the transporta tion of persons and property as they may think proper, and -the same to alter and change at pleasure. In Chicago, Milwaukee & St. Paul Railway Company vs. Minne sota, (134 U. S., 41S-453), It was provided by the charter that the directors of the cor poration should have power to make all needful rules, regulations and by-laws, touching the rates of toll and the manner of collecting the same. "Other cases of a similar character might be cited. In ail of them the Supreme Court of the United States held that these pro vi&ions are not such contracts as are pro tected by the constitutional provision against any impairment of the obligation of contracts by the State, or, in other words, that they are not contracts at all, or any thing more than a mere license or per mission to do the things that are mentioned therein at the will and pleasure of the State, and until such time an it may see fit to withdraw or revoke the same. In Pennsylvania Company vs. Miller, (132 U. S., 75, 83-84). where similar provisions were under consKh! ration by the Supreme Court, it said that the corporation 'took Its orig inal charter subject to the general law of the State, and to such changes as might' be made in such general law, and subject to future constitutional provisions or future general legislation, since there was . no previous contract with the defendant, ex empting it from liability to such future general legislation in respect of the subject matter involved. Nor will the ex emption claimed from future general legis lation, either by a constitutional provision or by an act of the Legislature, be admitted to exist, unless it Is expressly given, or unless It follows by an implication equally clear with express words.' (Georgia Rail road and Banking Company vs. Smith, 128 U. S.. 174-12; City of Indianapolis vs. Navin. 151 Ind., 139-143. And in Covington vs. Kentucky. 173 U. S.. 231-239), the Su preme Court said, concerning the sur render of another power of sovereignty which is classified in Covington Turnpike Company vs. Sandford, supra, with the power of regulating tolls and freights one as being equally important with the other, and both as being governed by the same rules of law: 'Before a statute particular ly one relating to taxation should be held to be Irrepealable, or not subject to amend ment, an Intent not to repeal or amend must be so directly or unmistakably ex pressed as to leave no room for doubt: otherwise, the intent is not plainly ex pressed. It Is not so expressed when the existence of the intent arises only from in ference or conjecture. "The sole difference between the provi sions which I have quoted from these other charters and the provisions of the charter which is under consideration here Is in that part of Section 23. which relates to the pos sible exercise by the State of its right to regulate tolls and freights upon the con tingency and within the limits that are specified therein. But that is, under the present view of the case, a limitation of the authority which was given in Section 22 In the nature of condition subsequent and does not purport to be anything more. If the words in which that authority Is given in Section 22 are not sufficient to constitute an irrevocable grant of exemption from legislative control over tolls and freight for an Indefinite or any period of time, the words in which that authority is limited in Section 23 are clearly insufficient to convert it into such a grant. A naked authority in Section 22 does not, upon the conditional reservation of It In Section 23. thereby be come an irrevocable grant of sovereignty. A condition subsequent renders an estate or an authority defeasible, but it does not en large an estate or an authority In any way. It may discharge a promise, but It does not work any change In the promise Itself. An agreement for the revocation of a revoca ble license under a partlclar state of cir cumstances does not render. It otherwise Irrevocable. An absolute grant In Section 23 is inconsistent and Irreconcilable with a mere license in Section 22. If tri naked au thority In Section 22 becomes an Irrevocable grant In Section 23. the provisions of the former section are rendered absolutely meaningless and are practically eliminated from the charter; and" such a construction of these sections Is therefore Inadmissible, whether they are considered as a license or a grant, a contract or a statute, for it violates that elementary rule of construc tion which requires that effect shall be given every part of an instrument or a legislative enactment. WHAT SECTION "23" MEANS. "The language of Section 23, either In connection with Section 22, or independent ly of it, does not expressly or by unavoid able implication manifest a clear and un mistakable Intention on the part of the Legislature to surrender its control over tolls and freights for an indefinite or any period of time to the corporation. Inde pendently of Section 22, it simply provides that whenever dividends have accumulated as described therein the State may, by fur ther legislation, regulate the tolls and freights of the corporation in a particular way. The legal inference from the lan guage of that provision is that. In the meantime, and until the State should regu late tne tons ana rreignts of the corpora tion, the mutual rights of the parties In that respect were to remain and continue as they existed under the common law when that provision was adopted. At and since that time the corporation had a right. without any provision In the charter con cerning tolls and freights, under the com mon law and as an incident of other pro visions In the charter, to charge reasona ble prices for Its services. Stone vs. Farmers Loan and Trust Company, su pra. Under the common law the State had a right to control these prices within reasonable limits. The right of the cor poration was subordinate to the right of the State. Munn vs. Illinois, 94 U. S., 113. The provisions of Sections 22 and 23 were simply declaratory of the common law, and they did not change the common law except as they fixed the minimum of regu lation by the State, an-i a legally sufficient consideration for that provision was the consideration for the charter as a whole and for every other part of it which was, according to the case of Dartmouth Col lege vs. Woodward. 4 Wheat., 517, the pub lic benefit, or the promise and undertaking of the corporation as it Is described by me on Page 12. The State did not, by an ex press reservation of its right to interfere with the corporate regulation of tolls and freights under special circumstances and In a particular way. Impliedly surrender Its general right of interference therewith un der all other circumstances and in every other way unless the retention of that general right to Inconsistent with the res ervation of tne special and particular right, and it will hardly be contended that there Is any Inconsistency between these rights, or that they may not exist to gether in the State. In Georgia Railroad and Banking Company vs. Smith, supra. It was held that the surrender 'must ap pear by such clear and unmistakable lan guage that it cannot be reasonably con strued consistently with the reservation of the power cf the State.' As the corpora tion had a right, without any provision In the charter concerning tolls and freights, to regulate its own tolls and freights in subordination to the right of the State to interfere with the corporate regulation of them whenever it was deemed necessary or proper to do so. and as these mutual rights of the parties were not abridged bv the provisions of the charter, It is evident that the corporation did not acquire or have any exemption rrom the legislative control of its tolls and freights by reason of the provisions of Section 23. or as a re sult of them, and that there was not any such consideration for Its liability in the present suit. RIGHTS OF STATE AND CORPORA TION. "And as the provisions of Section 22 do not, under the cases which I have cited, constitute an irrevocable grant or nn irre pealable contract there Is nothing in them which is properly the subject of a condl tlon or limitation in Section 23 within the legal definition of these terms. The State old not part with any rljht and the corT poratlon did not acquire any rlht undtr Section 22. The rights of the parties were precisely the same under that section as they would have been without it. With or without that section the corporation was authorized to regulate its tolls and freights until the State exercised its right to regulate them. If there was any abridgment or enlargement or modification of these rights of the parties it must have been accomplished by an independent grant or contract in Section 23, and I have shown that such a grant or contract does not exist therein. An express reservation of the right of the State to regulate tolls and freights was unnecessary. If the right was not surrendered it was retained. And the State does not specifically reserve a 'right in Section 23. as it does in Sections 30 and 35 and 36. but it assumes that a right already exists without a specific reservation of it. A general right of regu lating the tolls and freights of the corpora tion was therefore retained by the State and existed In it without the provision In Section 23 concerning them, and that pro vision was really nothing more than a special notice of an intention to exercise that right under a particular state of cir cumstances, or that a particular state of circumstances would be regarded as an oc casion for the exercise of it. One of the functions of such a provision In any view of it is to give notice of what the State mav do in the exercise of its rights. whether they are expressly retained or retained by reason or not being surren dered: and all other conceivable functions of the provision in Section 23 concerning tolls and freights being impossible or un necessary, the sole function that it can effectively perform is the function of glv inc such notice, and that, in my opinion. is all that was intended by it. Sinking Fund Cases, 99 U. S.. TOO. WHAT THE CONTRACT WAS. "The promise and undertaking of the cor poration was that wherever the State by a legislative enactment exercised its right to regulate tolls and freights under the cir cumstances that were Indicated by the special notice, and any balance of surplus profits remained after paying expenses and reserving such proportion as might be necessary for future contingencies the cor poration would pay such balance to the State, and either the minimum of regula tion as fixed by Section 23 or the privileges of the charter as a whole was a legally sufficient consideration for that promise and undertaking. A reasonable regulation of tolls and freights might have been made by the State on any other occasion or un der any other circumstances; It might have regulated them at any time before the dividends were equal to the investment and 10 ner centum ner annum thereon, or the full sum was Invested, or any dividends were declared without placing the corpora tion under anv pecuniary' liability. Its pecuniary liability upon such regulation was insenarable from the conditions that were specified in the notice and could arise under those conditions only, n ine regu lation bv the State were deferred until those conditions existed there was an inci dental and contingent liability on the part of the corporation, otherwise there was none whatever. But the regulation of tolls and freights by the State was not de nendent unon the circumstances or the con dition or upon any act of the corporation. The State could regulate them whenever it chose to do so. and the corporation is not legally chargeable with any response billty for the exercise or want oi exercise of the legislative will, even if the consid erations which influenced its exercise or want of exercise were reviewable by the courts. "All the provisions of Sections 22 and 23, including the pledge of the State that it would not reduce tolls and freights below the minimum which was fixed therein, are. when construed with the latter clause of Section 35, Inconsistent with any theory of an Irrepealable contract under numerous decisions of the Supreme Court of the United States. It held In Tomlinson vs Jessup, 15 Wall., 454, 459, that such a reser vation of the power to alter amend or re peal the charter as is contained In Sec tion 36 'affects the entire relation between the State and the corporation and places under legislative control all rights, privi leges and Immunities derived by its charter directly from the State; and this case was affirmed and followed as late as the case of Charleston vs. Jessup, 154 U. S., 592, as well as In many intermediate cases, ana its doctrine may be regarded as settled law. (Railroad Co. vs. Maine, 96 U. S., 4fi9: Water Co. vs. Clark. 143 u. ., i; nan- road Co. vs. Bristol. 151 U. S.. 156. and cases cited; Sinking Fund Cases, supra.j A SECTION REPEALED. "Section 36 was repealed In 1848, and con sequently there remains it Section 23 an Irreparable contract with the State by which it bound itself it would not reduce the tolls and freights below the minimum fixed thereby, in these words: 'But the corporation shall not be compelled by law to reduce the tolls and freights so that a minimum of 15 per centum per annum can not be made; and that provision, in my opinion, is the only Irrepealable contract concerning the regulation of tolls and frclehts in Sections 22 and 23. If. there fore, my search for the legislative Intent in these provisions of the charter were not restricted by the ruling ana opinions oi the Superior Court, I should find that the State did not irrevocably part with Its power to make reasonable regulations con cerning tolis and freights for an Indefinite or anv neriod of time in tne ongiai cnar ter; that by the repeal of Section 36 in 1848 It made its minimum of regulation as ties Ignated in Section 23 an irrepealable con tract: and that with this exception mere is not any Irrepealable contract concerning the regulation of tolls and freights in tne charter. "But as the Superior Court seems to nave decided that there Is such a special con tract between the parties in the provisions of Sections 22 and 23. upon which the pres ent action is maintainable, it becomes my duty to find and determine whether, upon th.it vlw or these provisions or ine cnar- ter, the facts warrant a recovery. In the discharge of that duty it becomes neces sary as a preliminary of such an investiga tion to ascertain what is meant ny ine words the 'full sum invested' in Section 23. It was conceded on tne argument De- fore me that these words are synonymous with the words the 'capital employed. which are subsequently used in that sec tlon. anü I think there cannot be any se rious doubt on that point. In other words. each of these phrases may be taken as a definition of the other; the 'full sum In vested meaning the 'capital employed,' and the 'capital employed' meaning the 'full sum Invested.' In this view of these Dhrases the definitions of them, which are furnished by the charter Itself, are exactly In accordance with both the legal and the popular definitions of them. Ther ought no popular definitions or tnem. -mere ougm not to be any controversy as to what is meant by the 'full sum Invested.' The meaning of these words Is as plain as human language can make it. The 'full sum Invested Is the whole Investment by the corporation In Its plant and property. It Is impossible to make that phrase mean anything else without the interpolation of other words. Additional light is thrown upon the meaning of that phrase by the The legal meaning of the word 'capital' has been settled in so many adjudications and is furnished by so many text-books and dictionaries that It Is Impossible to cite all of them. In People vs. Commissioners, 23 N. Y.. 192. 219, Chief Justice Comstock said: 'The word "capital ' Is unambiguous It signifies the actual estate, whether in monev or property, which Is owned by an individual or corporation. In reference to a corporation, it is the aggregate of the sum subscribed and paid in. or secured to be paid In. by the shareholders, with the additions of all gains or profits realized in the use or Investment of these sums; or. if losses have been incurred, then It Is the residue after deducting such losses All these definitions are briefly and ac curately summarized In the work of a re cent writer on ne uw oi i-rivaie i;or porations,' as follows: The word capital when properly used refers to the property of the corporation, while the capital stock represents the interests of the stockhold ers in the corporation. The amount of the capital stock is determined by the charter, and remains fixed except as increased or decreased in the manner provided by law. while the amount of capital which a cor poration may acquire Is limited only by Its success In acquisition or accumulation. Elliott on the Laws of Private Corpora tions. Section 300; Christensen vs. Eno. 10G N. Y.. 97; Bailey vs. Clark, 21 Wall.. 2S4; Farrington vs. Tenessee, 95 U. S., CN6; Wetherbee vs. Baker, 35 N. J. Eq., 501; Peo ple vs. Coleman. 12C N. 423; Interna tional Life Assurance Society of London vs. Commissioners of Taxes, 28 Barb., 31S. 'CENTURY'S DEFINITION OF CAPITAL. The popular and literary meaning of the word coincides with the legal meaning of it. In the Century Dictionary it Is de fined as 'the wealth employed In carrying on a particular trade; stock in trade; the actual estate whether in money or prop erty which is owned and employed by an individual, firm or corporation in Tauziners;' and the Century Dictionary adds that aa commonly used to Indicate financial re sources. It Implies ownership and cjcs not. without qualification. Include borrowed money;' ad It also adopts the deflnHlon of the word which I have quoted from the opinion of Chief Justice Ccrnstock. It is true that dividends are ordinarily decinrea on the nominal amount of capital stock, as urged by the State concerning the use of the words 'dividend' and 'divided In Section 23; but it is ordinarily presumable. where the amount, of capital stock Is un limited, that the nominal amount of It will fairly and accurately represent the full sum Invested" or the 'capital employed and It Is reasonable to believe that the Legislature meant that the State should not hold Itself bound by the nominal amount of capital stock in any accounting with the corporation. If so. either of the parties would have the right to demand that the nominal amount of the capital stock should fairly and accurately repre sent the 'full sum Invested or the 'capital, employed as a basis for dividends In an accounting between them. 'But it is contended by the State that the contract means that only so much of the 'full sum invested by the corporation, or only so much of the 'capital employed by the corporation as was directly contrib uted by the stockholders themselves, in their capacity as stockholders, to the lands of the corporation, should be taken Into account. Such a construction of the con tract Imposes a limitation upon Its terms for which there Is not any foundation in the contract itself, and it could be adopted only by reading Into the contract words which It does not contain, or. In short, by the construction of another and a different contract between the parties. The stock holders were really the corporation and they had the right and power In these matters to do through their own instru mentality and their own agents what they might themselves have done directly, and it could be done Just as legally and effec tively In one way as in the other. But th contract was not between the State and the stockholders; it was a contract be tween the State and the corporation; the grant was made to the corporation, and the consideration for it moved from the corporation; and the contract must be taken as having reference to all funds or the corporation which came from its stock holders, or were earned by it, and were Invested by the corporation in its plant and property. 'In behalf of this contention of the state P. is urged that a strict construction of the provisions of Section 23 should be adopted in favor of the State. Words and phrases In the charter can not be wrested from their legal and customary meaning by a strict construction of them, and a strict construction of them can not be Invoked by the State in support of its present con tention. A strict construction of particular provisions In a charter is required, as I have previously stated. In determinlnic whether any special privileges and im munities have been granted, or any of the powers of sovereignty have been surren dered, or, in short, whether an Irrepealable contract which Involves the grant or sur render of them by the State to the cor poration has been made. But when an ir repealable contract has been once estab lished, as It has been established by the ruling and opinions of the Superior Court. under the present view of the case, the time for a strict construction of those pro visions In favor of the State has'pafsed. and the parties are on precisely the same footing of complete equality as other par ties who have entered Into contractual re lations. PURPOSE OF THE CHARTER. The view of the charter which I have expressed is not only in accordance with the rule of statutory construction which has been prescribed by the Legislature I Burns's R. S. 1894, Sec. 240J. but It also co incides with the manifest purpose of the Legislature In the enactment of the char ter. It was described in the title as an act to incorporate a railroad company. So far as the title of the charter Is expressive of Its purpose that was its sole purpose. It was certainly the primary and para mount purpose of the charter. All other purposes are subordinate to the main pur pose of the charter and should not re ceive a construction which brings them into conmct therewith. The charter was not a legislative device for the creation of a common school fund. The corporation was not an instrumentality or agent of the State In levying a tax on the traveling and shipping public for the support of the com mon schools. It is hardly possible that the minds of the parties met on that view of the contract. Such a view of the charter is expressly contradicted by that provision of taction a which proposes to reduce the tolls and freights of the corporation upon the contingency and within the limits therein mentioned, which was a provision for the benefit of the traveling and shin- ping publio instead of the common schools; and. as rar as tolls and freights in excess of the amount to which they might and should have been reduced by the State were charged by the corporation, after Its liabili ty under the contract accrued, these earn- lngs equitably belong to the traveling and shipping public, or that part of it which furnished them, instead of the common schools. "The business of a railroad company is to build and conduct a railroad, and It re quires a great deal of money to build and conduct one. There was but one railroad in the State when this charter was adopted. more than half a century ago. The State wanted more railroads and the corpora tion really became one of Its Instrumental ities and agents for the purpose of build ing a railroad across its territory. Build ing a railroad was an uncertain and haz ardous enterprise. It was absolute ly necessary that the corporation should have money, and the State intended that It should have as much money as was necessalry for the purpose of its Incor poration. The State wanted money for tire construction and equipment of the rail road, more than It- wanted any particular kind of money, or money from any particu lar source. It was not the policy of thA State, or the purpose of the charter, to re strict investments in the pbnt or prop erty, but it was their policy and purpose to encourage these investments in order that the corporation might develop its plant and property and adequately per form It duties to the public In every way. The corporation was originally au thorized by Section 12 to build a railroad from 'some point on the western line of the State' eastwardly to the city of Rich mond, and it was subsequently 'released and discharged from the construction of any part of said road east of Indianapolis by the act of Jan. 20, 1S51. and it was au thorized by the act. of Feb. 16, 1848, to com mence operations at any point on said road If there be anything in the conten tion that the railroad or any part of it should have been constructed eastwardly Instead of westwardly from such a point. In literal compliance with the terms of the charter. It might have been available In a proceeding for the forfeiture of the charter, but It is not available in the present suit; and the same might be said concerning the time designated by the charter for the com pletion of the railroad, for that does not, in my opinion, form any part of the ' essence of the contract. Logan vs. Railroad Com pany, 90 Ind., 552; Railroad Company vs. Clifford, 113 Ind.. 460. But all further dis cussion of that point is rendered unneces sary by the amendment to the charter on March 6. 1S65, which extended the time of construction for a period of seven years from that date. It is urged on behalf of the State that the railroad should be re garded as completed under the original charter on Nov. 30. 1S56. because It ap pears from the books of the corporation that the construction account was closed on that date and was not reopened until ISO. But there was not on that date a rail read between any point on the western ltns of the State and the city of Terre Haute as authorized by the charter, and the cor poration had not been 'released and dis charged' by the Legislature from the con struction of that part of the railroad as In the case of that part of It east of the city of Indianapolis, and the railroad was not regarded by the Legislature as com pleted when the act of March 6. ISC was parsed, as conclusively appears from its express terms. A? a matter of fact tha railroad which wss authorized by the char ter had not been completed on Nov. SO. 185, and the books and records of the corpora tion show that large sums of money wer actually Invested In the betterment of the railroad between that date rnd 1S69. Th closing of the construction account did not work an estoppel which precludes the cor poratlon from showing what the fadts were, and the purpose of this inquiry 1 to ascertain the facts as they actually existed. BUT ONE ROAD AUTHORIZED. "If the position of the State be correct there were really two railroads built under this charter; one of them being a railroad from Terre Haute to Indianapolis, and the ether being a railroad from Terre Haut to a point on the western line of the State. It is my opinion that only one railroad, with its branches, was authorized by tha charter; that the design and purpose of tha Legislature were tht such railroad should extend from a point on lb western Uaa