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Ohio law Journal.




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 informaCOLUMBUS, OHIO, : NOV. 24, 1881.

tion, in general, it has been incontestibly

proved that this method of proceeding is no way “ INFAMOUS."

contrarient to any Fundamental Rule of Law, We cannot believe that any enlightened pa- and had the approbation of the Judges and

but agreeable to it. It was the constant usage triot ever for a moment really hoped for a con

. viction of the Star Route Thieves. It would Lawyers of all Ages, and in all reigns." The

indictment by a grand inquest or a grand jury. never do to have the bars of a prison stand be

was an outgrowth of the abuse of the prosecutween the social good fellowship of those who

tion for crime by information; but was never used stolen “soap” and those who by the use

intended to supercede that entirely legal and of stolen “soap” are high in office and prosper- consistent method until a date comparatively ity. But the doubts and misgivings of the pa

recent. Under a government such as ours the triots never apprehended so flimsy a pretext of escape as the recent decision of Judge Cox, by proceeding is as safe and as thoroughly conso

nant with the liberty of the people as the prowhich the thieves aforesaid were set free. ceeding by indictment. It makes not one jot of There are many ways by which the administra

difference to the accused, or upon the final vertion of justice is hindered and criminals pro- dict, whether he comes before the court upon an tected by those sworn to punish them. One

information, or an indictment. In neither case popular method is for the Prosecuting Attorney

can he make a defence until put upon his trial, to go before the grand jury and labor against the

and the trial itself is precisely the same in both 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

The Constitutional provision before Judge any other convenient falsehood to prevent an

Cox, and which he evidently does not underindictment.

stand, is : Where parties are once upon their trial by in


shall be held to answer for a capiformation or indictment, however, it becomes

tal or otherwise infamous crime unless on a premore difficult to free them, and some stranger sentment or indictment of a grand jury. (Conit. methods are often resorted to.

U. S. Amend. Art 5.) Judge Cox, in this case, rescinded the order Where no statutory provision intervenes we allowing an information to be filed, and quashed may well concede that terms made use of in the the information that had been presented. This Constitution of the United States find their set free the thieves who had stolen three million truest interpretation in the usages of the Comdollars of the Nation's money. In so doing he mon Law. In Pennsylvania there is a Constiserved the scoundrels a good turn, no doubt, but tutional provision which prohibits information he did so at the expense of justice, and right where an indictment lies. In New Hampshire and law.

and Vermont no information is allowed where Proceedings for the punishment of crime have the punishment is death or confinement at hard been instituted by information constantly since labor. In Connecticut the limitation is to crime was first punished by human laws. And crimes punishable by death or imprisonment for from the information, the trial and the sentence life. In New York and Virginia the distinction of death passed by Judah upon Tamar, down to is only as to infamous crimes. The same rule the trial of the Seventy Rioters in the 3d year has long been adopted as the governing princiof the reign of William and Mary the legalityple in proceedings in the United States Courts. of the proceeding was never questioned, so far This brings us to the question presented to as history beareth witness. At the latter time, Judge Cox-Whether conspiring to defraud the however, a fruitless attempt was made to set free government is an “infamous” crime? Not ina lot of cut-throats by having the proceeding by famous as the word is generally used, but in the information pronounced illegal and an infringe- meaning of the Constitutional limitation. . ment of human rights. It was true then, as We had supposed this question well settled by now, that "no rogue e'er felt the halter draw, the various unreversed rulings of 1 Gall. C. C. 3, with good opinion of the law.”

where illegal exportation of goods was held not

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infamous : In U. S. v. Maxwell. 21 Int. Rev. that it becomes a painful thing to bring any Rec. 148, where violation of Revenue laws was thing to mind, except it be in or of the law. held not infamous. In 1 Mass., C. C. 482, where To these this book will be golden. To those smuggling was held not an infamous offence. who love fun for its own sake, the book will be In the Rev. Stat. U. S. 1022, where offences welcome, for there are many excellent jokes against the elective franchise are declared pun- therein; and the enemies of the profession will ishable upon information' by the District Attor- take delight in knowing what asses lawyers and ney. If more than this were needed to open the judges sometimes make of themselves. eyes of Judge Cox, as to the law of infamous

AMERICAN DECISIONS. VOL. XXIX. This crimes, he might have found enlightenment in the following:

volume contains one hundred and fifty cases in

full, selected, because of their value to the presU. S. v. Isham, 17 Wall. 496.

ent practice, and in consonance with and govU. S. v. Bozzo, 18 Wall. 125. U. S. v. Waller, 1 Sawyer, C. C. 701.

erning the rulings of courts upon important 1 U. S. v. Ebert, 1 Cent. L. J. 205.

questions of law, from the various State Reports Stockwell v. U. S., 13 Wall. 531.

of 1835 and 1836. To nearly all of these cases is

appended notes, and collections of cases wherein U. S. v. Maxwell, 3 Dill. 275, and

the rulings of the principal case have been folU. S. v. Block, 15 Bank, Reg. 325, in all of which, the distinction is made that

lowed since that time. In nearly all cases these

notes and collections amount in fact to a brief of crimes are not infamous under the Constitutional limitation relating to proceeding by in

the authorities upon the question in hand. We formation unless the person accused is precluded

notice among other valuable papers the follow

ing: from appearing as a witness in his own behalf. It has been further held that great severity of Right of Stoppage in Transitu, 384-396 punishment, by imprisonment for a long term,

Trespass by one co-Tenant against

483-6 does not render a crime “infamous.”

Overvaluation of Injured Property, 616-22 R. v. Hickman, 1 Mood., C. C. 34.

Cruelty as Ground for Divorcē, . 674-80 People v. Whipple, 9 Cow. 707.

The AMERICAN DECISIONS have become indisCom. v. Shaver, 3 W. & S. 338.

The offence charged against the Star Route pensable in the practice of all great lawyers, Thieves, viz: “Conspiracy to defraud the gov

and the constant companion of judges, in deal

ing with all questions of great importance. ernment,” not having been by statute declared

Bancroft & Co., San Francisco, Cal. 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.

A PROMINENT law firm in Cincinnati continThis leads inevitably to the conclusion that the

ues to address communications to Arnold offence charged against the quartette of scoun

Green, Clerk of the Supreme Court.” No longer drelly Star Routers is not an infamous one, under

ago than Tuesday of this week, did Mr. Crowell, the law, but that the ruling of the Judge is em

the present Clerk, receive a communication so phatically so.

addressed. It is needless to say that this firm is

the only prominent law firm in Cincinnati not NEW BOOKS.

on the Law JOURNAL subscription list. Did the

members of this firm receive and read weekly ODDITIES OF THE LAW. By FRANKLIN

the LAW JOURNAL, they would long since have FISKE HEARD, Esq. 12 mo; Cloth, $1.50. Bos

known that Mr. Richard J. Fanning succeeded ton: Soule & Bugbee, 1881. Mr. Heard has a

Mr. Arnold Green, as Clerk of the Supreme largely developed sense of the humors of the

Court, and that Mr. Dwight Crowell succeeded laws and lawyers. He has published one or two

Mr. Fanning, and is now the accommodating volumes something similar to the one before us,

and efficient Clerk. and like this one, entertaining and scholarly. He delights in picking up quaint and funny things said and done by lawyers, clients and The Supreme Court of the United States, judges, and preserving them for the entertain- Monday last, decided that the capital of a bank ment of whom it may concern. The minds of invested in foreign countries, can be taxed in Bome men become so thoroughly soaked in law the United States.


The Supreme Court is now considering cases under protest, there being no other mode of supon the General Docket up to and including plying said furnaces. number 182. This week's report shows a long The existence, as well as the valựdity of said con

The action was commenced April 11, 1868. list of cases disposed of, which gives evidence of

tract was put in issue. The trial resulted in a hard work on the part of the Judges. The verdict in favor of plaintiff, including, by way of Court will adjourn for the term shortly before damages, all overcharges, exacted and paid the the holidays. The Clerk of the Court, Mr.

railroad company for receiving, docking, handCrowell, and his Deputy, Mr. Frazier, will re

ling and transporting ores, from the time when quire at least three weeks in which to prepare tract, to the commencement of the action, and

the company refused longer to observe the contheir new dockets, make up a new calendar, and also including expenses paid to others than the get everything in readiness to open the new railroad company for docks at Cleveland, and for term January 30, 1882. The Judges will not handling the ore at that point. adjourn this term until they find they are

On a motion for a new trial, as well as in the crowding the time absolutely needed by the

petition in error, numerous reasons are assigned,

why this judgment should be reversed. None of Clerk.

these have been sustained, except as to the

amount paid other parties at Cleveland for dockSUPREME COURT OF OHIO.

age, &c. As to that item a remittitur' has been

entered, and the judgment less that amount has THE CLEVELAND & MAHONING RAILROAD Co.

been affirmed. Only one of these questions, has

been reserved for report, and the facts specially THE HIMROD FURNACE COMPANY.

relating to it, will be stated in the opinion.

JOHNSON, J. November 15, 1881. A former judgment in favor of the plaintiff in The board of directors of a railroad company, who are

error, was reversed and reported in Himrod Furauthorized by the act of incorporation to construct, main- nace Co. v. The C. & M. R. R. Co. 22 O. State 451. tain and operate a railroad, and, for that purpose, are em- For a full statement of the pleadings and of the powered to make contracts and '“ to do all acts needful to carry into effect the objects for which it was created,” in

points then decided we refer to that report. It cluding the right to demand and receive for the transpor- is sufficient for our present purpose, to say, that tation of passengers and property a compensation not it was there held, that certain evidence was adexceeding a maximum rate, may, within that limit, make contracts for transportation for a fixed future pe

missible to prove the alleged contract, and that riod. Such a contract, if otherwise valid, is not ultra said contract if proved, was not void for want of vires and void, for the reason that it binds the corpora- mutuality of obligation between the parties, nor tion for a fixed period of time.

for want of a sufficient consideration. Error-Reserved in the District Court of Cuy- On the last trial, this contract was proved as ahoga County

alleged, and a v rdict and judgment resulted, The action below was brought by Himrod which it is sought to reverse. Furnace Co., to recover damages for the breach, This judgment is to all overcharges paid by by the Cleveland & Mahoning Railroad Co., of an the plaintiff beloj to the plaintiff here, has, after alleged contract, to receive and dock at Cleve- a careful consider tion of all the points made, land, and to transport from thence over its road, been affirmed. Among the errors assigned is to plaintiff's furnaces at Youngstown, all the one we have reser 'ed for report. Lake Superior iron ore, which the plaintiff It is now claim :d, that this contract for transshould require in the manufacture of pig iron at portation, though not void for want of mutuits furnaces.

ality, nor for wanı of a sufficient consideration As alleged in the petition, and as proved to to support it, is so for want of a capacity of the the satisfaction of the jury, on issue joined, which corporation to make it. It is insisted with required such proof, the railroad was bound earnestness and marked ability, that the laws of for ten years from February 15, 1860, to receive, Ohio, do not confer upon the directors of a raildock and transport said ore, at the rate not ex- way corporation the power to make such a conceeding $1,00 per ton for five years, and for a tract for a term of years, which will bind that, or further term of five years at a rate not exceeding any future board of directors. The claim is that, $1,20 per ton, and not exceeding the lowest “ The franchise conferred upon railway corporafreight charged to others during the whole tions as the agents of the state, for the operation period of ten years.

of a public highway, to transport persons and The breach alleged was, that although the property and to receive a reasonable compensa

' Railroad Company had fully performed said con- tion for it, was given to be used for the equal tract, by carrying plaintiff's ores at the agreed benefit of those to whom it equally belonged, rate down to 1864, yet on 1st of November of and not to be abused; to be preserved in all its that year, it refused longer to recognize or be integrity, for use from time to time, as the exigenbound by said contract, and thereafter refused cies of the corporation and the public good might to carry unless at a much greater rate, which require, and not to be frittered away by alienthe plaintiff was compelled to pay and did pay ation or contract in favor of individuals or classes,



or to build up monopolies or other interests * The Himrod Furnace Co. v. The C. & M. R. * * To hold that this judgment and discretion R. Co. 22 O. St. 451. We see no reason to disturb of the directors in performing their duties, un- that decision. der the authority of this franchise might be sus- 3d. This is not a question of the abuse, by the pended for periods of ten years in succession, board of directors of the judgment and discretion would certainly be attended with strange if not vested in them by law, to contract for transdisastrous consequences.” (Judge Ranney's

(Judge Ranney's portation. Neither the stockholders nor the Brief.)

public authorities are here complaining. The substance of this claim is, that a board It is not even insisted that the rates fixed by of directors of a railway corporation have no au- the contract are not reasonable and advantageous thority to bind the corporation for a term of years, to the railroad company, nor that the board of or for any future time, however short, which in directors did not act in perfect good faith. any manner abridges or suspends the discretion In view of the evidence and the verdict, we of the same or any future board to fix rates such have the right to assume, that the contract was as the exigencies of the corporation and the pub- to the mutual advantage of both parties, that it lic good might require," in short, that such a was made in good faith, and that its performance contract is ultra vires, notwithstanding the con- for the whole term would not have been injuritract, when made is based upon a sufficient and ous to the interest of the stockholders, or in any valuable consideration received by the corpora- way suspend or abridge the powers conferred to tion and was in all respects fair and reasonable. discharge the duties the corporation owed to the

In the discussion of this proposition, it is of public as a common carrier, to carry for all on the first importance, that it should be carefully equal terms. distinguished from other questions of somewhat 4th. Neither does the length of time the conkindred nature, which the learned counsel have tract has to run, affect the question of power. A blended with it in the argument.

contract for a less time than ten years, or in1st. It is distinguishable from that class of deed for any time, is invalid if there is no corcontracts sometimes made by conmon carriers, porate power to make time contracts for transwhich are held to be void because they unjustly portation. discriminate in favor of one shipper over an- If the power exists, to make a time contract other. The invalidity of such contracts arises for transportation, the discretion thus vested from the fact that it is against public policy to may be abused to the prejudice of the corporaallow any common carrier, whether an individ- tion and its stockholders. For such abuse of ual or a corporation to give an illegal preference vested powers, the law furnishes a remedy in to one shipper over another, for the same kind proper cases, as in other cases of a breach of and amount of service.

trust by boards of directors of corporations. So When such is the nature of the contract for it might, by such a contract, grant a monopoly transportation, its validity or invalidity does to one shipper, and thus render it incapable not depend upon the individual or corporate of carrying for others. It is not claimed that character of the carrier but upon the provisions the existence of this contract, impairs the capacof the contract itself, unless the terms of the ity of the company to carry for others, as its charter of the corporation limits its power to public dụty requires. We are thus brought to contract in this respect.

the question, whether the board of directors had These contracts are not enforceable because the power or capacity to make a contract to they are against public policy, and not because transport property for a fixed time. This dethey are ultra vires. An act of a corporation is pends upon its chartered powers. ultra vircs, when it is beyond the chartered powers The Cleveland & Mahoning Railroad Company of the corporation, and is therefore said to be was chartered February 22, 1848, with authority void. It may also be void because it is against to construct a railroad from Cleveland to Warren, public policy as declared by statute, or the Trumbull county, with the right to extend it fundamental law, or for any reason that would east to the state line. The company was to make a like contract of an individual, void. In have, “ all the powers and be subject to all the the case before us, the court charged the jury as restrictions and provisions of the Act regulatto what constituted an invalid contract on ac- ing railroad companies, passed February 11th, count of discrimination. That charge was not

1848." 1 Ohio Railway Rep. 545. prejudicial to the plaintiff in error. The jury By the Act of Feb. 11, 1848, this corporation found as a fact that this contract was not obnox- was endowed with a corporate capacity, " to sue ious to this objection. A careful review of the and be sued, plead and be impleaded, defend and evidence satisfies us that the jury were war

defended, contract and be contracted with, ranted in so finding. This eliminates from the acquire and convey at pleasure all such real and problem the question of the invalidity of this personal estate as may be necessary and convencontract on the ground of discrimination.

ient to carry into effect the objects of the incor2nd. That such a contract is not void for poration; * * and do all needful acts to want of a sufficient consideration to support the carry into effect the object for which it was crepromise of the railroad company, nor for want of ated; and such company shall possess all the mutuality of obligation between the parties, powers and be subject to all the rules and rew po settled in this case when it was here before. strictions provided by this act, except so far as


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modified by the special act incorporating the the right to use any appropriate means to carry

into effect the powers expressly granted, or necBy Sec. 7, the directors are vested with the essarily implied. There is a clear line of disexercise of these corporate powers, and are to tinction, between cases involving the mode of “transact all business of the corporation." exercising granted powers, and those where the

By Sec. 12; “such corporation may demand power to do the act is wanting. If the power and receive for the transportation of passengers to do an act is clearly conferred, either by exon said road, not exceeding three and one half press grant or by necessary implication, the corcents per mile, and for the transportation of poration may adopt any appropriate means, not property not exceeding five cents per ton per expressly forbidden. The mode or manner in mile when the same is to be transported a dis- which the act shall be done, is, in the absence of tance of thirty miles or more, and in case the limitations imposed by the charter, left to the same is transported for a less distance than sound discretion of the corporate authority. thirty miles such reasonable rate as may be In this case the power to make contracts for from time to time fixed by said company." 1 transportation cannot be questioned. Ohio Railway Report 14-17.

Whether such contracts shall be made by a In this act the power, “to contract and be con- published tariff of rates, or, as expressed in the tracted with, * * * and to do all needful bill of lading which accompanies each shipment, acts to carry into effect the objects for which it or by a general contract with each shipper for a was created;" clearly embraces the power to longer or shorter term rests, we think, in the transport persons and property, as a common sound discretion of the board of directors. If carrier for hire.

either method is resorted to it is but the exercise This obviously includes the right to charge of a power expressly granted, which is necessary and collect compensation, at a rate not exceeding and essential to carry oat one of the leading obthe maximum fixed by Sec. 12 of the statute. jects of the corporation, namely, to earn money,

Substantially the same provisions are found for the proprietors. If this were not so railroad in the general act of 1852, relating to railroads.corporations would possess immunities that no The object for which the charter was granted, individual has. was to construct maintain and operate a railroad A contract made to-day might be repudiated for the individual benefit of the stockholders, to-morrow, or even while goods are in transit as well as for the public benefit. Here, then is under agreed rates, under the plea that the exian express power to make contracts for transpor-gencies of the corporation requires it. If such tation, and to agree with the shipper upon rates. a principle be sound, no reason exists, why it The only limitation which the statute imposes should not apply to all executory contracts which is that the rates shall not exceed the maximum the corporation is authorized to make, as well as fixed by Sec. 12 of the act.

to contracts for transportation. Every undertaking to carry persons or prop- In this holding, we do dot controvert the prinerty rests upon contract express or implied. It ciple, that the company cannot alienate its may be the result of an express contract, agreed franchise or property, which are essential to the upon by the parties, or it may arise by implica- performance of any duty it owes to the public. tion of law. In either case it is a contract, This corporation is clothed with powers and which gives the company the right to demand franchises of both a public and private nature. and receive compensation.

It could not, without express authority divest The power that exists to make a contract for itself of its power to perform all obligations it a single shipment, will authorize a contract for owed to the public or to the State. It could not a series of shipments, or for a period of time. do this either by misuser, nonuser, or by contract

Whether the rates be fixed by a schedule and without liability to the State, or to those hayposted up, or by separate contract in each case, ing the right to demand their performance. As is not material. In either way it is a lawful a private corporation it also possessed powers and exercise of the power to contract with the ship- | franchises, such as the power to contract and be per for a compensation.

contracted with, and generally to do all acts We fully agree that this corporation is the needful to carry out the objects of the incorporacreature of the law, and that being such, “it tion. Included in this class of powers, is that of possesses only those properties which the char- demanding, and receiving compensation for ter of its creation confers upon it, either ex- transportation. Its power to contract in this pressly or as incidental to its very existence;" respect is limited by the maximum rate fixed Dartmouth College v. Woodward, 4 Wheat. 518, by statute, also by the rule above stated, that it 636; and that grants of power to individuals to cannot impair its ability to perform its public construct, maintain and operate a railroad, as a duties. To make a contract for transporta body corporate, which are primarily designed for binding for a greater time than a single shipthe profit of its stockholders, should receive a ment, is within the scope of its authority, if it strict construction. “The exercise of the cor- is otherwise valid, and if the power to perform porate franchise, being restrictive of individual all the duties it owes to the public are not imrights, cannot be extended beyond the letter and paired or abridged. spirit of the act of incorporation.” Beaty v.

Thus, in Thomas v. West Jersy R. Co., 101, Knowles, 4 Peters 162. This does not exclude / W. S. 71, it was held that a lease by a railroad

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