THIS case came up from the Circuit Court of the United States for the district of Indiana, on a certificate of division in opinion between the judges thereof.
The nature of the case and the certificate of division in opinion are stated in the opinion of the court.
It was argued by Mr. Vinton and Mr. Benjamin for the plaintiffs, upon which side there was also a brief filed by Mr. Judah, and by Mr. Porter, upon a brief filed by himself and Mr. McDonald, for the defendants.
The points for the plaintiffs were very much illustrated by Mr. Vinton and Mr. Benjamin, in their arguments. Essentially, however, they are stated in the brief of Mr. Judah, from which the following statement of them is taken:
The first question on which the judges differed relates to the nature of the right granted by the act of incorporation, and by the amendment to that act to the railroad company, to receive county subscriptions. In other words, was it a vested right, beyond the reach of a law or Constitution made afterwards?
There is no provision in the new Constitution of Indiana as to existing rights, either personal or corporate, except the ordinary declarations, 'No man's property shall be taken by law, without just compensation.'
Art. 1, sec. 21.
And 'no law impairing the obligation of contracts shall ever be passed.'
Art. 1, sec. 24.
We assume that the property of private corporations is protected by section 21.
By the act of incorporation, a capital of five millions is contemplated; but the company is allowed to organize on the subscription of two hundred thousand dollars, and a payment at the time of subscription is required. By the 12th section, counties are authorized to subscribe for stock, as, by the 6th section, all persons of lawful age and all corporations of the United States may subscribe. Does the power exist anywhere to restrain these rights, against the will of the company? If the company may be deprived of one of these classes of subscribers, it may be deprived of all; and thus its entire capacity may be destroyed, and itself in effect annihilated.
But it is argued that counties are municipal corporations; that municipal corporations are under the control of State legislation; and that those who contract with them contract subject to this control. And we answer, it is true that municipal corporations are subject to the control of the Legislature. That is the general rule. Is there not, in the nature of things, an exception? If the Legislature creates a municipal corporation, and endows it with other powers-with powers 'to contract and be contracted with;' with powers of a private and not of a political nature; with powers including the rights and duties and obligations of private corporations and individuals-does it not creat an exception as to such rights, duties, and obligations? In such case, the Legislature may control, may dissolve the corporation, but the rights, the duties, and obligations, will remain chargeable on its property. And we refer to the opinions of this court in at least two cases.
Mumma v. Potomac Co., 8 Peters, 280.
Curran v. State of Arkansas, 15 How., 310.
The second question on which the judges differed covers more ground than the first question.
The declaration states and the demurrer admits an election and vote in favor of subscription in March, 1849, before the new Constitution. The question is, whether, by virtue of the act of incorporation and the amendment, and the election, the railroad company acquired such right to the subscription as would be protected by the Constitution of the United States.
We submit that this question only differs from the first question in being, if anything, stronger than the first in favor of the plaintiffs. In the first, a mere right, dependent on a certain discretion, is claimed. In this a right is claimed, so perfected that nothing remained but the discharge of a ministerial duty.
The law is plain: 'And if a majority of the votes given shall be in favor of subscription, the county board of said county shall subscribe.'
Sec. 2, act Jan. 15, 1849.
There is no discretion. There is only a duty; and this, by the law of Indiana, may be enforced by mandamus. Writs of mandate issue 'to compel the performance of an act which the law specially enjoins.'
Section 739.
And 'obedience to such writs may be enforced by attachment, and fine or imprisonment, or both.'
Sec. 745, 2 Rev. Stat., 197, 198.