The State on the relation of Ferguson v. The Board of Trustees of the Wabash and Erie Canal, 4 Ind. 495

Davison, J. This was a proceeding by writ of mandamus, issued from the Vigo Circuit Court against said board of trustees. The writ commands them forthwith to pay to the relator 1,417 dollars out of the net tolls andrevenues of that portion of said canal between the Ohio state line and Lafayette, inclusive, or show cause to the contrary thereof. The relator, it appears, is the owner and holder of 56,712 dollars of Wabash and Erie canal stocks, duly issued in place of principal and interest of original Wabash and Erie canal bonds surrendered to the state for cancellation, in exchange for said stocks, pursuant to

an act to provide for the funded debt of the state and for the completion of said canal to Evansville, and also

an act supplementary thereto. See Laws of 1846, p. 3, and Laws of 1847, p. 3. The sum demanded by the writ is the interest on said stocks from the first of January, 1853, to the first of July in that year.

It also appears, that between these periods, the said trustees kept an account of the tolls and revenues of, and the expenditures on, that part of the canal between the Ohio state line and Lafayette, and they amounted to more than a sufficiency, over defraying necessary expenses, repairs and outlays, to pay the full interest of 5 per centum per annum on all certificates of stocks that had been issued on account of that class of original bonds surrendered and known as Wabash and Erie canal bonds. But the trustees, in answer to the wi’it, allege that the canal is unfinished.

To complete it, the outlay of a large amount of money is still required. For the work already done in its construction, they are now indebted, and it is their duty to apply all said tolls and revenues to the payment of such indebtment, and upon the work required for its completion. That besides the stocks issued on the surrender of the original Wabash and Erie canal bonds, there is a variety of other stocks issued under the operation of the acts referred to.

And it is not intended by these acts that they shall pay from said tolls and revenues the interest on the class of stocks as claimed by the relator, in exclusion of other stocks therein specified, &c. A demurrer to the answer was overruled, and the proceeding dismissed, &c. Whether the Court erred by overruling the demurrer, must depend upon the construction to be given to said acts. By the eighth

section of the original act, “the bed of the Wabash and Erie canal and its extensions,” &c., is vested in said trustees by grant from the state, “ and also all the lands and lots (not sold or disposed of) heretofore given,” &c., “by the general government to the state to aid in the construction of said canal,” &c.-, “and all moneys due and to grow due,” &c., “on account of any sale or sales heretofore made of any canal lands,” &c., “in trust and security for the uses and purposes following,” &c.

The act then proceeds to declare the trusts, and the manner and order in which the trust funds shall be applied toward the liquidation of the different liabilities which the canal and-its assets are made to assume under the arrangement of the state debt.

And then comes the proviso in the fifth specification of said section, viz.: “From and after the first day of January, 1853, an account of the tolls and revenues of, and the expenditures on, that portion of the canal between Lafayette, inclusive, and the Ohio state line, shall be kept separate and distinct from a like account of that portion between Lafayette, exclusive, and Evansville, and from and after that period the tolls and revenues derived from the first-named portion, after defraying necessary expenses,” &c., “ shall first be applied to make the full interest of five per centum per annum on the certificates of stock that may be issued for the bonds now outstanding and known as the Wabash and Erie canal bonds,” &c.

The scale of distribution set forth in the

section just referred to, is altered by the tenth

section of the supplemental act; but that

section contains a provision “saving the just rights of the holders of bonds outstanding and known as the Wabash and Erie canal bonds as provided for in the said eighth section.” The relator, in accordance with the terms of the law, surrendered a number of bonds of the class designated in the above-recited proviso. Then, does the case presented by the record entitle him to 5 per cent, interest on his certificates of stock, out of the net tolls and revenues of the first-named portion of the canal, from the 1st of January, 1853? The proviso constitutes an exception to the general provisions of the act.

It evidently discriminates in favor of the class to which the relator’s stocks belong. “From and after the 1st of January, 1853,” the tolls and revenues derived from the first-named portion, &c., “ after defraying expenses,” &c., “shall first be applied to make the full interest,” &c., “on certificates of stock that maybe issued for bonds,” &c., “known as Wabash and Erie canal bonds.” This language is very explicit. Indeed, there is no room left for construction. There is, therefore, no difficulty in pointing out the duty of the trustees under the proviso.

From and after the period above named, they were bound to keep separate accounts of the revenues of the two sections of the canal. It is admitted that such accounts were kept; that the funds in their hands were sufficient to have met, in full, the interest on all the certificates issued for Wabash and Erie canal bonds. This interest, by the fifth

section of the act, is payable on the first days of January and July. The record shows that the relator made proper demand of the interest due on his certificates on the first day of last July. In view of the facts of this case, we think it was the duty of the trustees to have paid the amount demanded. And they, having failed to do so, the Court, in our opinion, committed an error by dismissing the Writ. M. G. Bright, for the state. W. D. Griswold, for the defendants. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.