Ohio Law Journal. COLUMBUS, OHIO, : : : "INFAMOUS." Sir B. Shower, who made a special study of that course of proceeding in criminal cases, says of its legality (Show. Rep. 106): "As to informaNOV. 24, 1881. tion, in general, it has been incontestibly proved that this method of proceeding is no way contrarient to any Fundamental Rule of Law, but agreeable to it. It was the constant usage and had the approbation of the Judges and Lawyers of all Ages, and in all reigns." The indictment by a grand inquest or a grand jury was an outgrowth of the abuse of the prosecution for crime by information; but was never intended to supercede that entirely legal and consistent method until a date comparatively recent. Under a government such as ours the proceeding is as safe and as thoroughly consonant with the liberty of the people as the proceeding by indictment. It makes not one jot of difference to the accused, or upon the final verdict, whether he comes before the court upon an information, or an indictment. In neither case can he make a defence until put upon his trial, and the trial itself is precisely the same in both We cannot believe that any enlightened patriot ever for a moment really hoped for a conviction of the Star Route Thieves. It would never do to have the bars of a prison stand between the social good fellowship of those who used stolen "soap" and those who by the use of stolen "soap" are high in office and prosperity. But the doubts and misgivings of the patriots never apprehended so flimsy a pretext of escape as the recent decision of Judge Cox, by which the thieves aforesaid were set free. There are many ways by which the administra tion of justice is hindered and criminals protected by those sworn to punish them. One popular method is for the Prosecuting Attorney to go before the grand jury and labor against the finding of a bill of indictment, saying that the law is unconstitutional or that a civil case is pending, that will decide the same point; or by any other convenient falsehood to prevent an indictment. Where parties are once upon their trial by information or indictment, however, it becomes more difficult to free them, and some stranger methods are often resorted to. Judge Cox, in this case, rescinded the order allowing an information to be filed, and quashed the information that had been presented. This set free the thieves who had stolen three million dollars of the Nation's money. In so doing he served the scoundrels a good turn, no doubt, but he did so at the expense of justice, and right and law. Proceedings for the punishment of crime have been instituted by information constantly since crime was first punished by human laws. And from the information, the trial and the sentence of death passed by Judah upon Tamar, down to the trial of the Seventy Rioters in the 3d year of the reign of William and Mary the legality of the proceeding was never questioned, so far as history beareth witness. At the latter time, however, a fruitless attempt was made to set free a lot of cut-throats by having the proceeding by information pronounced illegal and an infringement of human rights. It was true then, as now, that "no rogue e'er felt the halter draw, with good opinion of the law." cases. The Constitutional provision before Judge Cox, and which he evidently does not understand, is: "No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury. (Cont. U. S. Amend. Art 5.) Where no statutory provision intervenes we may well concede that terms made use of in the Constitution of the United States find their truest interpretation in the usages of the Common Law. In Pennsylvania there is a Constitutional provision which prohibits information. where an indictment lies. In New Hampshire and Vermont no information is allowed where the punishment is death or confinement at hard labor. In Connecticut the limitation is to crimes punishable by death or imprisonment for life. In New York and Virginia the distinction is only as to infamous crimes. The same rule has long been adopted as the governing principle in proceedings in the United States Courts. This brings us to the question presented to Judge Cox-Whether conspiring to defraud the government is an "infamous" crime? Not infamous as the word is generally used, but in the meaning of the Constitutional limitation. We had supposed this question well settled by the various unreversed rulings of 1 Gall. C. C. 3, where illegal exportation of goods was held not infamous In U. S. v. Maxwell. 21 Int. Rev. Rec. 148, where violation of Revenue laws was held not infamous. In 1 Mass., C. C. 482, where smuggling was held not an infamous offence. In the Rev. Stat. U. S. 1022, where offences against the elective franchise are declared punishable upon information' by the District Attorney. If more than this were needed to open the eyes of Judge Cox, as to the law of infamous crimes, he might have found enlightenment in the following: U. S. v. Isham, 17 Wall. 496. U. S. v. Waller, 1 Sawyer, C. C. 701. U. S. v. Ebert, 1 Cent. L. J. 205. Stockwell v. U. S., 13 Wall. 531. U. S. v. Maxwell, 3 Dill. 275, and U. S. v. Block, 15 Bank, Reg. 325, in all of which, the distinction is made that crimes are not infamous under the Constitutional limitation relating to proceeding by information unless the person accused is precluded from appearing as a witness in his own behalf. It has been further held that great severity of punishment, by imprisonment for a long term, does not render a crime "infamous." R. v. Hickman, 1 Mood., C. C. 34. The offence charged against the Star Route Thieves, viz: "Conspiracy to defraud the government," not having been by statute declared to disqualify the party charged, as a witness in his own behalf, it is very plain that it is not an offence held as infamous by the Constitution. This leads inevitably to the conclusion that the offence charged against the quartette of scoundrelly Star Routers is not an infamous one, under the law, but that the ruling of the Judge is emphatically so. NEW BOOKS. ODDITIES OF THE LAW. BY FRANKLIN FISKE HEARD, Esq. 12 mo; Cloth, $1.50. Boston: Soule & Bugbee, 1881. Mr. Heard has a largely developed sense of the humors of the laws and lawyers. He has published one or two volumes something similar to the one before us, and like this one, entertaining and scholarly. He delights in picking up quaint and funny things said and done by lawyers, clients and judges, and preserving them for the entertainment of whom it may concern. The minds of some men become so thoroughly soaked in law that it becomes a painful thing to bring any thing to mind, except it be in or of the law. To these this book will be golden. To those who love fun for its own sake, the book will be welcome, for there are many excellent jokes therein; and the enemies of the profession will take delight in knowing what asses lawyers and judges sometimes make of themselves. AMERICAN DECISIONS. VOL. XXIX. This volume contains one hundred and fifty cases in full, selected, because of their value to the present practice, and in consonance with and governing the rulings of courts upon important questions of law, from the various State Reports of 1835 and 1836. To nearly all of these cases is appended notes, and collections of cases wherein the rulings of the principal case have been followed since that time. In nearly all cases these notes and collections amount in fact to a brief of the authorities upon the question in hand. We notice among other valuable papers the following: A PROMINENT law firm in Cincinnati continues to address communications to "Arnold Green, Clerk of the Supreme Court." No longer ago than Tuesday of this week, did Mr. Crowell, the present Clerk, receive a communication so addressed. It is needless to say that this firm is the only prominent law firm in Cincinnati not on the LAW JOURNAL subscription list. Did the members of this firm receive and read weekly the LAW JOURNAL, they would long since have known that Mr. Richard J. Fanning succeeded Mr. Arnold Green, as Clerk of the Supreme Court, and that Mr. Dwight Crowell succeeded Mr. Fanning, and is now the accommodating and efficient Clerk. THE Supreme Court of the United States, Monday last, decided that the capital of a bank invested in foreign countries, can be taxed in the United States. THE Supreme Court is now considering cases the General Docket up to and including number 182. This week's report shows a long list of cases disposed of, which gives evidence of hard work on the part of the Judges. The Court will adjourn for the term shortly before the holidays. The Clerk of the Court, Mr. Crowell, and his Deputy, Mr. Frazier, will require at least three weeks in which to prepare their new dockets, make up a new calendar, and get everything in readiness to open the new term January 3d, 1882. The Judges will not adjourn this term until they find they are crowding the time absolutely needed by the Clerk. SUPREME COURT OF OHIO. THE CLEVELAND & MAHONING RAILROAD Co. v. THE HIMROD FURNACE COMPANY. November 15, 1881. The board of directors of a railroad company, who are authorized by the act of incorporation to construct, maintain and operate a railroad, and, for that purpose, are empowered to make contracts and "to do all acts needful to carry into effect the objects for which it was created," including the right to demand and receive for the transportation of passengers and property a compensation not exceeding a maximum rate, may, within that limit, make contracts for transportation for a fixed future period. Such a contract, if otherwise valid, is not ultra vires and void, for the reason that it binds the corporation for a fixed period of time. Error Reserved in the District Court of Cuyahoga County. The action below was brought by Himrod Furnace Co., to recover damages for the breach, by the Cleveland & Mahoning Railroad Co., of an alleged contract, to receive and dock at Cleveland, and to transport from thence over its road, to plaintiff's furnaces at Youngstown, all the Lake Superior iron ore, which the plaintiff should require in the manufacture of pig iron at its furnaces. As alleged in the petition, and as proved to the satisfaction of the jury, on issue joined, which required such proof, the railroad was bound. for ten years from February 15, 1860, to receive, dock and transport said ore, at the rate not exceeding $1,00 per ton for five years, and for a further term of five years at a rate not exceeding $1,20 per ton, and not exceeding the lowest freight charged to others during the whole period of ten years. The breach alleged was, that although the Railroad Company had fully performed said contract, by carrying plaintiff's ores at the agreed rate down to 1864, yet on 1st of November of that year, it refused longer to recognize or be bound by said contract, and thereafter refused to carry unless at a much greater rate, which the plaintiff was compelled to pay and did pay under protest, there being no other mode of supplying said furnaces. The action was commenced April 11, 1868. The existence, as well as the validity of said contract was put in issue. The trial resulted in a verdict in favor of plaintiff, including, by way of damages, all overcharges, exacted and paid the railroad company for receiving, docking, handling and transporting ores, from the time when the company refused longer to observe the contract, to the commencement of the action, and also including expenses paid to others than the railroad company for docks at Cleveland, and for handling the ore at that point. On a motion for a new trial, as well as in the petition in error, numerous reasons are assigned, why this judgment should be reversed. None of these have been sustained, except as to the amount paid other parties at Cleveland for dockage, &c. As to that item a remittitur has been entered, and the judgment less that amount has been affirmed. Only one of these questions, has been reserved for report, and the facts specially relating to it, will be stated in the opinion. JOHNSON, J. A former judgment in favor of the plaintiff in error, was reversed and reported in Himrod Furnace Co. v. The C. & M. R. R. Co. 22 O. State 451. For a full statement of the pleadings and of the points then decided we refer to that report. It is sufficient for our present purpose, to say, that it was there held, that certain evidence was admissible to prove the alleged contract, and that said contract if proved, was not void for want of mutuality of obligation between the parties, nor for want of a sufficient consideration. On the last trial, this contract was proved as alleged, and a v rdict and judgment resulted, which it is sought to reverse. This judgment is to all overcharges paid by the plaintiff belo to the plaintiff here, has, after a careful consider tion of all the points made, been affirmed. Among the errors assigned is one we have reser ed for report. It is now claimed, that this contract for transportation, though not void for want of mutuality, nor for want of a sufficient consideration to support it, is so for want of a capacity of the corporation to make it. It is insisted with earnestness and marked ability, that the laws of Ohio, do not confer upon the directors of a railway corporation the power to make such a contract for a term of years, which will bind that, or any future board of directors. The claim is that, "The franchise conferred upon railway corporations as the agents of the state, for the operation of a public highway, to transport persons and property and to receive a reasonable compensation for it, was given to be used for the equal benefit of those to whom it equally belonged, and not to be abused; to be preserved in all its integrity, for use from time to time, as the exigencies of the corporation and the public good might require, and not to be frittered away by alienation or contract in favor of individuals or classes, * or to build up monopolies or other interests * ** To hold that this judgment and discretion of the directors in performing their duties, under the authority of this franchise might be suspended for periods of ten years in succession, would certainly be attended with strange if not disastrous consequences." (Judge Ranney's Brief.) The substance of this claim is, that a board of directors of a railway corporation have no authority to bind the corporation for a term of years, or for any future time, however short, which in any manner abridges or suspends the discretion of the same or any future board to fix rates such as the exigencies of the corporation and the public good might require," in short, that such a contract is ultra vires, notwithstanding the contract, when made is based upon a sufficient and valuable consideration received by the corporation and was in all respects fair and reasonable. In the discussion of this proposition, it is of the first importance, that it should be carefully distinguished from other questions of somewhat kindred nature, which the learned counsel have blended with it in the argument. 1st. It is distinguishable from that class of contracts sometimes made by common carriers, which are held to be void because they unjustly discriminate in favor of one shipper over another. The invalidity of such contracts arises from the fact that it is against public policy to allow any common carrier, whether an individual or a corporation to give an illegal preference to one shipper over another, for the same kind and amount of service. When such is the nature of the contract for transportation, its validity or invalidity does not depend upon the individual or corporate character of the carrier but upon the provisions of the contract itself, unless the terms of the charter of the corporation limits its power to contract in this respect. These contracts are not enforceable because they are against public policy, and not because they are ultra vires. An act of a corporation is ultra vircs, when it is beyond the chartered powers of the corporation, and is therefore said to be void. It may also be void because it is against public policy as declared by statute, or the fundamental law, or for any reason that would make a like contract of an individual, void. In the case before us, the court charged the jury as to what constituted an invalid contract on account of discrimination. That charge was not prejudicial to the plaintiff in error. The jury found as a fact that this contract was not obnoxious to this objection. A careful review of the evidence satisfies us that the jury were warranted in so finding. This eliminates from the problem the question of the invalidity of this contract on the ground of discrimination. 2nd. That such a contract is not void for want of a sufficient consideration to support the promise of the railroad company, nor for want of mutuality of obligation between the parties, we settled in this case when it was here before. The Himrod Furnace Co. v. The C. & M. R. R. Co. 22 O. St. 451. We see no reason to disturb that decision. 3d. This is not a question of the abuse, by the board of directors of the judgment and discretion vested in them by law, to contract for transportation. Neither the stockholders nor the public authorities are here complaining. It is not even insisted that the rates fixed by the contract are not reasonable and advantageous to the railroad company, nor that the board of directors did not act in perfect good faith. In view of the evidence and the verdict, we have the right to assume, that the contract was to the mutual advantage of both parties, that it was made in good faith, and that its performance for the whole term would not have been injurious to the interest of the stockholders, or in any way suspend or abridge the powers conferred to discharge the duties the corporation owed to the public as a common carrier, to carry for all on equal terms. 4th. Neither does the length of time the contract has to run, affect the question of power. A contract for a less time than ten years, or indeed for any time, is invalid if there is no corporate power to make time contracts for transportation. If the power exists, to make a time contract for transportation, the discretion thus vested may be abused to the prejudice of the corporation and its stockholders. For such abuse of vested powers, the law furnishes a remedy in proper cases, as in other cases of a breach of trust by boards of directors of corporations. So it might, by such a contract, grant a monopoly to one shipper, and thus render it incapable of carrying for others. It is not claimed that the existence of this contract, impairs the capacity of the company to carry for others, as its public duty requires. We are thus brought to the question, whether the board of directors had the power or capacity to make a contract to transport property for a fixed time. This depends upon its chartered powers. The Cleveland & Mahoning Railroad Company was chartered February 22, 1848, with authority to construct a railroad from Cleveland to Warren, Trumbull county, with the right to extend it east to the state line. The company was to have, "all the powers and be subject to all the restrictions and provisions of the Act regulating railroad companies,' passed February 11th, 1848." 1 Ohio Railway Rep. 545. By the Act of Feb. 11, 1848, this corporation was endowed with a corporate capacity," to sue and be sued, plead and be impleaded, defend and be defended, contract and be contracted with, acquire and convey at pleasure all such real and personal estate as may be necessary and convenient to carry into effect the objects of the incorporation; * * * and do all needful acts to carry into effect the object for which it was created; and such company shall possess all the powers and be subject to all the rules and restrictions provided by this act, except so far as modified by the special act incorporating the same." By Sec. 7, the directors are vested with the exercise of these corporate powers, and are to "transact all business of the corporation." By Sec. 12; "such corporation may demand and receive for the transportation of passengers on said road, not exceeding three and one half cents per mile, and for the transportation of property not exceeding five cents per ton per mile when the same is to be transported a distance of thirty miles or more, and in case the same is transported for a less distance than thirty miles such reasonable rate as may be from time to time fixed by said company." Ohio Railway Report 14-17. 1 In this act the power, "to contract and be contracted with, * * * and to do all needful acts to carry into effect the objects for which it was created;" clearly embraces the power to transport persons and property, as a common carrier for hire. This obviously includes the right to charge and collect compensation, at a rate not exceeding the maximum fixed by Sec. 12 of the statute. Substantially the same provisions are found in the general act of 1852, relating to railroads. The object for which the charter was granted, was to construct maintain and operate a railroad for the individual benefit of the stockholders, as well as for the public benefit. Here, then is an express power to make contracts for transportation, and to agree with the shipper upon rates. The only limitation which the statute imposes is that the rates shall not exceed the maximum fixed by Sec. 12 of the act. Every undertaking to carry persons or property rests upon contract express or implied. It may be the result of an express contract, agreed upon by the parties, or it may arise by implication of law. In either case it is a contract, which gives the company the right to demand and receive compensation. The power that exists to make a contract for a single shipment, will authorize a contract for a series of shipments, or for a period of time. Whether the rates be fixed by a schedule and posted up, or by separate contract in each case, is not material. In either way it is a lawful exercise of the power to contract with the shipper for a compensation. We fully agree that this corporation is the creature of the law, and that being such, "it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence;" Dartmouth College v. Woodward, 4 Wheat. 518, 636; and that grants of power to individuals to construct, maintain and operate a railroad, as a body corporate, which are primarily designed for the profit of its stockholders, should receive a strict construction. "The exercise of the corporate franchise, being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation." Beaty v. Knowles, 4 Peters 162. This does not exclude the right to use any appropriate means to carry into effect the powers expressly granted, or necessarily implied. There is a clear line of distinction, between cases involving the mode of exercising granted powers, and those where the power to do the act is wanting. If the power to do an act is clearly conferred, either by express grant or by necessary implication, the corporation may adopt any appropriate means, not expressly forbidden. The mode or manner in which the act shall be done, is, in the absence of limitations imposed by the charter, left to the sound discretion of the corporate authority. In this case the power to make contracts for transportation cannot be questioned. If Whether such contracts shall be made by a published tariff of rates, or, as expressed in the bill of lading which accompanies each shipment, or by a general contract with each shipper for a longer or shorter term rests, we think, in the sound discretion of the board of directors. either method is resorted to it is but the exercise of a power expressly granted, which is necessary and essential to carry out one of the leading objects of the corporation, namely, to earn money for the proprietors. If this were not so railroad corporations would possess immunities that no individual has. A contract made to-day might be repudiated to-morrow, or even while goods are in transit under agreed rates, under the plea that the exigencies of the corporation requires it. If such a principle be sound, no reason exists, why it should not apply to all executory contracts which the corporation is authorized to make, as well as to contracts for transportation. In this holding, we do dot controvert the principle, that the company cannot alienate its franchise or property, which are essential to the performance of any duty it owes to the public. This corporation is clothed with powers and franchises of both a franchises of both a public and private nature. It could not, without express authority divest itself of its power to perform all obligations it owed to the public or to the State. It could not do this either by misuser, nonuser, or by contract without liability to the State, or to those having the right to demand their performance. As a private corporation it also possessed powers and franchises, such as the power to contract and be contracted with, and generally to do all acts. needful to carry out the objects of the incorporation. Included in this class of powers, is that of demanding and receiving compensation transportation. Its power to contract in this respect is limited by the maximum rate fixed by statute, also by the rule above stated, that it cannot impair its ability to perform its public duties. To make a contract for transportation binding for a greater time than a single shipment, is within the scope of its authority, if ìt is otherwise valid, and if the power to perform all the duties it owes to the public are not impaired or abridged. Thus, in Thomas v. West Jersy R. Co., 101, W. S. 71, it was held that a lease by a railroad |
