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The fourth count was on an itisimul computassent.

The defendants pleaded non-assumpserunt, and payment, with
leave to give special matter in evidence.

The case, as disclosed by the evidence given on the trial, was
as follows :

The Union Canal Company of Pennsylvania was incorpo-
rated by an Act of Assembly passed the 2d of April, 1811. (5
Sm. L. 266.) By the 6th section of that act, the stockholders
were directed to choose five managers, one of whom was to be
president of the company. The president and managers were
authorized to appoint a secretary, engineers, and such other
officers, and to allow them such compensations as they should
find necessary and expedient.

In the year 1811, the president and managers were elected
by the stockholders, and the company organized. On the 24th
of July, *1811, the salaries of the president and mana- r^-ioni
gers were fixed by the stockholders, and on the 16th of *
November, 1813, their salaries were increased, that of the presi-
dent to fifteen hundred dollars, and those of the managers to
three hundred dollars per annum.

On the 26th of July, 1811, a secretary was appointed, who
resigned in October, 1816, when the president and managers
appointed the plaintiff their secretary. No particular sum was
fixed by a vote of the board, as a salary for the secretary ; but it
appeared that three hundred dollars per annum had been allowed
to that officer ; and, at that rate, the plaintiff was paid up to
the 17th of October, 1818. The plaintiff held the situation of
secretary until the 21st of May, 1821, during which period he
discharged his duties with fidelity and to the satisfaction of his
employers. In addition to keeping the minutes of the Board of
Managers, he had the principal care of the archives of the
company, was required to be present at all the transfers of
stock, and drew several contracts with the managers of the dif-
ferent classes of the Union Canal Lottery.

The plaintiff produced his account, audited and settled by the
proper officers of the company.

The defendants admitted the plaintiff's right to recover for
services performed prior to the 29th of March, 1819 ; and
against the residue of his claim, they relied, for a defence,
upon the 7th section of the act of that date, (7 Sm. L. 228),
entitled, "An act supplementary to an act, entitled 'An act to

201



182 SUPREME COURT [Philadelphia,

[Ehrenzeller v. The Union Canal Company.]

incorporate the Union Canal Company of Pennsylvania/ which
is in these words : ' Be it further enacted, &c., That, from and
after the passage of this act, no compensation shall be allowed
by the said company to its officers, until the works are actually
recommenced upon the canal ; after which time the salaries may
be regulated by the stockholders in the customary manner :
Provtaed, That if the said work shall be suspended or inter-
rupted for the space of three months, the salaries allowed to the
said officers shall cease from the time of such suspension, and
until the work be recommenced.' '''

On the 12th of July, 1819, a letter was sent by the commis-
sioners named in the act of the 29th of March preceding, to
the president and officers of the company, informing them that
their efforts to procure additional subscriptions had entirely
failed ; declining to make any further attempts to procure them,
and recommending the raising of money by lottery, which was
accordingly done.

The lottery fund amounted, on the 21st of May, 1821, to
upwards of seventy thousand dollars, which had accumulated
in part prior, and in part subsequent to the 29th of March, 1819.
The company had also a considerable real estate, which had
been taken for the route of the canal, before their proceedings
had ceased in consequence of the expenditure of all their funds
derived from .private subscriptions.

In consequence of the act passed on the 26th of March, 1821,
(7 Sm. L. 393), which pledged the aid of the state to the work,
l~*i -n subscriptions *were obtained under the act of the 29th of
J March, 1819, and on the llth of April, 1821, the fact
was communicated to the president and officers of the com-
pany, by a letter from the commissioners ; whereupon, there not
being time to call a meeting of the stockholders, the president
and officers ordered two papers to be prepared, to l>e handed for
signature to the individual stockholders, declaring their accept-
ance of the new act. The board fixed the 21st of May, 1821,
for the meeting of the stockholders to elect a new board ; and
this, it was contended for the* defendants, was their first accept-
ance of the provisions of the act of the 29th of March, 1819.

,On the 21st of May, 1821, a meeting of the stockholders was
held, when officers were elected, agreeably to the provisions of
the act of 1819. The plaintiff continued to hold the situation,
and perform the duties of secretary, until the 21st of May,
1821, the original contract between him and the president
and officers of the company never having been changed by the
parties.

The evidence being closed, the case went to the jury under
the following charge from the President Judge :
202



Jan. 24, 1829.] OF PENNSYLVANIA. , 183

[Ehrenzeller v. The Union Canal Company.]

" The questions of law arising in this case have been deter-
mined on a former occasion by this court, and I have only to
express their opinion to you, that the plaintiff may be enabled
to except to my charge, and have his bill of exceptions and writ
of error to the Supreme Court. I state the law to be That
upon the facts in evidence, in this case, the plaintiff cannot re-
cover from these defendants any compensation under either
count in this declaration for the services rendered after the 29th
of March, 1819, The law upon the facts is not altered by the
manner of declaring in the second and third counts in this de-
claration. Nor is the plaintiff 's case the better by reason of the
examination and approval of his account. He is entitled to re-
cover, if at all, by virtue of his appointment as secretary on the
1st of April, 1816, and because of the services which he ren-
dered in that character. He is not entitled by law to any com-
pensation for his services as secretary to the Board of Managers
of the company, after the 29th of March, 1819. Your verdict,
therefore, should be for $ , with interest, being the

amount due him on the 29th of March, 1819, and the interest."

To this charge the plaintiff's counsel except ed, and sued out
a writ of error.

W. M. Meredith and Scott, for the plaintiff in error.

1. If the 7th section -of the act of the 29th of March, 1819,
be construed to extend to the present case, it is utterly void,
because it is in violation of the 17th section of the 9th article of
the Constitution of Pennsylvania, and the first part of the 10th
section of the 1st article of the Constitution of the United States.
It violated, in the first place, the contract created by the char-
ter between the legislature and the company, which was a pri-
vate corporation, *the rights of which cannot be impaired r^,-. ^ ,-i
without its own consent. The king cannot interfere with L
the chartered rights of a corporation without trial and judgment,
nor, on the same principle, can the legislature of Pennsylvania,
without the consent of the corporation. No consent was given by
the Union Canal Company to the act of the 29th of March, 1819,
until the 21st of May, 1821 ; at which period the services of the
plaintiff ceased. And, if such consent had been given, it would
have been in violation of the contract entered into by the company
with the plaintiff, to pay him the compensation agreed upon so
long as he should continue in office, and until he should have
notice of removal. 4 Wheat. 207, 656, 659, 662, 667, 682,
711 ; 8 Wheat. 84, 92 ; 3 Burr. 1661 ; 3 Kyd on Corp. 65.

But the court will, if possible, give such a construction to the
act of assembly, as will reconcile it with the Constitution ; and
in this there is no difficulty. In the first place, it was not in-

203



184 SUPREME COURT [Philadelphia,

[Ehrenzeller v. The Union Canal Company.]

tended to apply to the old officers of the company. The legis-
lature contemplated a reorganization of the company, and in-
tended to prevent, in future, the payment of salaries where no
services were performed. It was not their intention to go back,
and take away salaries from officers who were then receiving
them.

But, in the second place, if the act was intended to embrace
the old officers, it did not extend to the secretary. He was not
such an officer as came within the provisions of the law, which
referred to those who received large salaries and performed no
duties.. He was the only officer belonging to the corporation
who received a small salary, and performed very laborious duties.
If the business of the company was neglected, it was not his
fault. He had nothing to do with the direction. The evil to
be remedied, was, that the works upon the canal had ceased ;
and the object of the law was, that they should be recommenced.
To effect this, the act of assembly provided a stimulus to those
who had the management of the concerns of the corporation.
Its provisions should, therefore, be confined to officers of that
character, and not extended to mere ministerial officers, such
as the secretary, engineers, &c., who had no control over the
affairs of the company, and without whose previous services the
works could not be recommenced.

The provisions of the act of assembly, relative to the salaries
of officers, clearly show that the secretary was not within the
view of the legislature. Upon the recommencement of the
works, the salaries of the officers were to be regulated by the
stockholders in the customary manner. The officers referred to
must, therefore, have been those whose salaries it had been cus-
tomary for the stockholders to regulate, and not the secretary
and engineers, whose salaries had never been regulated by the
stockholders, but by the managers in whom their appointment
was vested. They were properly not the officers of the com-
pany, but of the managers.

But, if the secretary be comprehended by the act, the only
f*185l * reasona l e construction of it is, that salaries should not
J be paid until after the recommencement of the works ;
not that no compensation should, at any time, be allowed for
services rendered before that period. The most laborious part
of the business was to restore to order the deranged affairs of
the company. Active exertions were to be made ; contracts to
be entered into ; skill, prudence, and diligence were to be exer-
cised; the president was restrained from pursuing any other
mode of gaining a livelihood. Can it be pretended, that for all
these exertions and sacrifices, no compensation whatever was to
be made ? or could it be expected, that if none were to be made,
204



Jan. 24, 1829.] OF PENNSYLVANIA. 185

[Ehrenzeller v. The Union Canal Company.]

the works would ever be recommenced ? Some of the most im-
portant and laborious of the duties of the secretary, such as the
drawing of contracts, and other preparatory services, must ne-
cessarily have been performed before' the actual recommence-
ment of the works. Those which were to be performed after-
wards, were comparatively light. Upon the principle by which
it is attempted to cut off the salary of the secretary, the survey-
ing engineer, upon whose skill, capacity, and fidelity, the whole
success of the work must have depended, would be denied any
compensation whatever for his services, since those services must
all have been rendered before the works could go into operation.
The intention of the legislature was> that no salaries should be
paid where no duties were performed. The former were to de-
pend upon the latter ; and when the recommencement of the
works testified that duties had been rendered, compensation
was to be allowed, as well for services previously, as for those
subsequently performed.

The act of 1819 continues the obligations of the old corpora-
tion. All the privileges and immunities, and, consequently, all
the burdens of the old company, were vested in the new one.
Strictly speaking, it was not the creation of a new corporation,
but the re-organization of the old corporation, under a new di-
rection. The defendants admit their liability for services ren-
dered prior to 1819, and therefore are precluded from saying
they are not bound by the contracts of their predecessors.
They cannot take all the property and all the benefits, and
throw oif the debts of those to whom they succeed. The old
board acknowledged the plaintiff' s claim, which was regularly
passed by their proper accounting officers.

If the contract cannot be enforced for the salary of the plain-
tiff as secretary, he is entitled to recover on a quantum meruit,
for his services as an individual. The defendants cannot deny
his official character, in order to deprive him of his salary, and
assert that character to prevent his recovering a just compensa-
tion for services actually rendered.

Binney, for the defendants in error. It was competent to the
company alone, to object to the constitutionality of the act of
assembly by which they were remodelled ; and they have made
no objection. From the lips of third persons, such an objection
*cannot come; nor can it now come from the company r*i 0/^-1
themselves, because they have accepted the charter, \-
uot merely from the time of their new organization, but in toto.
Their acceptance has a retrospective operation from the date of
the law. To say otherwise, would be to permit one party to
adopt a contract in a sense different from what the other party

205



186 SUPREME COURT [Philadelphia,

[Ehrenzeller v. The Union Canal Company.]

intended ; for it is certain the legislature intended that the law
should go into operation from its date. The question, therefore,
whether the legislature had power to pass the law, though by no
means a difficult one, does not arise. The company have ac-
cepted the charter unconditionally, and do not now object. The
objection is raised, by a third person, for them, and without
their consent. It is true, that if he has a contract which is
violated by the law, he may assert its unconstitutionally. But
the plaintiff never had an express contract with the company
after 1816, when he was appointed. He received no appoint-
ment afterwards. While he was acting as secretary in 1819,
this act of assembly was passed. With a full knowledge of its
provisions, he goes on to render services, without any new ap-
pointment or contract of any kind, knowing that if the law is
valid, he cannot be paid. When, therefore, it was rendered
valid by the acceptance of the company, he could not complain
of the loss of his salary, because he acted with his eyes open,
and had a mere implied contract, dependent upon the acceptance
or non-acceptance of the charter by the company.

As to the construction of the act. Its terms are plain, and
where there are no ambiguities, the court should make no subtle
efforts to find out other meanings than those the words import.
It is clear from the bill of exceptions, that the plaintiff never
claimed in any other character than as secretary. There was
no evidence of services rendered otherwise than as secretary,
and the opinion of the District Court was, that he could not
recover upon the common counts, for services rendered in that
capacity. If he was an officer, and his services were rendered
as such, he cannot dodge the act by claiming a compensation
on a quantum meruit. The question then is, was he an officer ?
That he was so in point of fact, there is no doubt ; but whether
he was so, within the meaning of the act, is another matter.
It is said that he was not the officer of the company, but of the
managers ; but the minutes show, and so does the bill of excep-
tions, that whenever anything was to be done by the company,
he performed it as their secretary. He attended the meetings
of the company, and superintended the transfers of stock.
Besides, the managers were the representatives of the company,
and their acts were the acts of their constituents. The bill of
exceptions states that the plaintiff in error was appointed by the
managers, " secretary of the company," and then goes on to say,
that he was entitled to compensation for his services aforesaid,
that is, as secretary of the company. The distinction between
l~*187~l en g meers *and officers is obvious, and need not be
J dwelt upon. Every company must have a secretary,
and if he is not an officer of the company, it is impossible to
206



Jan. 24, 1829.] OF PEXXSYLVAXIA. 187

[Ehrenzeller v. The Union Canal Company.]

imagine who is. H > is more identified with its concerns than
any other officer. He, as well as the other officers, doubtless
performed some services, but those services were not such as the
legislature thought entitled them to compensation. They de-
clared, that until the recommencement of the works, the officers
should receive no salaries, and the company accepted the terms
offered. The president, managers, secretary, all the officers of
the company were before the legislature when the law was
passed, and no distinction was made between them. All were
considered as sufficiently interested in the concerns of the cor-
poration to perform the services preparatory to its re-organiza-
tion. Whether the officer was appointed by the stockholders or
the managers, was of no moment ; the object being to cut off
the salaries of all sinecure officers, no matter by whom ap-
pointed, in order to preserve the funds for the future operations
of the company.

It is said the act was intended to apply to officers to be ap-
pointed ; but such an interpretation would overturn to express
language, and contravene its whole object. The legislature
have said, that the law should go into immediate operation ;
and, if it had been otherwise, it w r ould have been in the power
of the old company to continue the old abuses as long as they
pleased.

The account signed by the auditor and counsel avails nothing.
It was against law, and of no effect ; and it would have been the
same thing' if all the managers had acknowledged its correctness.
They were bound, if at all, not as individuals, but in their cor-
porate capacity, and could not, by their approbation, give va-
lidity to that which was contrary to law.

The opinion of the court was delivered by

ROGERS, J. On the 2d of April, 1811, the legislature passed
the act to incorporate the Uniori Canal Company of Pennsyl-
vania; and, by the 28th section, gave the company authority to
raise, by lottery, three hundred and fifty thousand dollars ; and
provided, that the profits arising from the lotteries should not
form a capital stock of the company, upon which any dividend
should be made to the stockholders, but that the same should be
considered as a bounty to the corparation, to enable them to
make the tolls as low as possible. The company, after having
commenced the work, suspended their operations, having raised,
and continuing to raise, large sums of money by drawing the
lotteries authorized by the act. In the annual return to the
legislature, at the session of 1819, the managers made a state-
ment of their accounts ; in which it appeared that large salaries
had been paid and were paving to the officers of the company,

207



187 SUPREME COURT [Philadelphia,

[Ehrenzeller v. The Union Canal Company.]

while little or no duties were performed, aud that out of the
funds (for they had no other,) appropriated by the legislature,
for the special purpose of making the tolls as low as possible.
f*188l e pk^tiffw 38 * tue secretary of the company, and as
J such was returned in the statement of their accounts,
as in the receipt of a salary of three hundred dollars per annum.
With a knowledge of these facts, which are alleged in the pre-
amble to the section to be notorious, and for the purpose of pre-
venting such abuses in future, the legislature enacted, " That
from and after the passage of this act, no compensation shall be
allowed by the company to its officers until the works are ac-
tually recommenced upon the canal ; after which time the sala-
ries may be regulated by the stockholders in the customary
manner ; Provided, That if the said work shall be suspended,
or interrupted for the space of three months, the salaries al-
lowed to the said officers shall cease for the time of such suspen-
sion, and until the work be recommenced." The defendants
interpose this seventh section of the act of the 29th of March,
1819, in the way of the plaintiif 's recovery, and allege that he
comes within its words and spirit, which is denied by the plain-
tiif; and this, with the constitutionality of the act, forms the
question which we are required to decide. The defendants say,
the secretary is not an officer, and, if not an officer, that he is the
officer, of the managers, and not of the company. With this I
do not agree. He is as much the officer of the corporation as
the cashier or clerk of a bank, who clearly are the servants of
the company, and not of the directors, by whom they are ap-
pointed. And, in the 6th section of the act of the 2d of April,
1811, he is expressly called an officer; for it is provided, that
the president and managers shall have authority to appoint a
secretary, engineer, and such other officers, &c., and allow such
compensation as they may find necessary and expedient.

But the plaintiff further contends, that although he may be
considered an officer, in the strict sense of the word, he is not
such an officer as was contemplated by the act ; that the legis-
lature had in view the president and managers, and not the
secretary. It would appear to me to be strange, that if the
legislature intended to discriminate between the secretary and
others, who were in the receipt of large salaries out of public
moneys, they should not have expressed their meaning in ex-
plicit terms. And where they have not thought proper to do so,
it is not competent for us to make the distinction. It would be
wresting language from its obvious import, in favour of a person,
whom it appeared to the legislature, and to us, has been well
compensated for any services he may have performed. The
duties of a secretary of a company, which had entirelv suspended
208



Jan. 24, 1829.] OF PENNSYLVANIA. 188

\

[Ehrenzeller v. The Union Canal Company.]

its operations, could not have been very onerous, and the legis-
lature may well have been struck with the injustice, in his case,
of squandering money appropriated to a public purpose, on a
person whose duties were by no means burdensome.

The legislature, in the enacting clause, drop the word salary,
used in the preamble, and say, " No compensation shall be al-
lowed, by the company to its officers, until the works are actu-
ally recommenced."

*They seem to have anticipated, that expedients would r.,., OQ-I
be resorted to, to avoid the operation of the section, and '-
have used a word which embraces every species of allowance
which may be attempted for the services of the officers of the
company, all whose proceedings upon the canal had long since
ceased, and whose only funds were derived from lotteries,
granted by the legislature. It will not do for the officers of the
company to say, that although we cannot receive compensation,
by way of salary, yet we are entitled to pay, for our services, on
a quantum meruit. If this should be the construction of the
act, it would be in the power of the managers to defeat the mani-
fest intention expressed by the legislature, the preservation of
the fund to enable the corporation to lessen tolls to be charged
for the use of the canal. It would only be necessary to allow
the whole salary, by way of compensation, for the company, who
had already abused their trust, would be the judges of the quan-
tum of service, and its value. And if this should be permitted,
in the case of the secretary, the same rule must be adopted as
regards the president and managers, who, in the opinion of the
legislature, had evidently shown their willingness to appropriate
to themselves large salaries, for which adequate services were
not rendered. It is to be remembered, that the services for
which he claims compensation, were performed by him as secre-
tary of the company, and in no other capacity whatever.

It remains now to inquire how far the act interferes with the
10th section of the 1st article of the Constitution of the United



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 1) → online text (page 23 of 60)