ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
By this writ of error we are called upon to review the decision of the Supreme Court of the State of Illinois, and it is insisted that that decision is in conflict with the clause of the first section of the Fourteenth Amendment to the national Constitution, which declares that "no State shall deprive any person of life, liberty, or property without due process of law," and of the tenth section of the first article of that Constitution,
which prohibits a State from passing any law impairing the obligations of contracts.
It is the settled law of this court that to give it jurisdiction of a writ of error to a state court it must appear affirmatively not only that a Federal question was presented to that court for decision, but also that the decision of the question was necessary to the determination of the cause, and that it was actually decided adversely to the party claiming a right under the Federal laws or Constitution; or that the judgment as rendered could not have been given without such decision. Miller's Executors v. Swann, 150 U.S. 132; Eustis v. Bolles, 150 U.S. 361, and cases cited therein.
Guided by the rule thus laid down and long established, we turn to the record, including therein the opinion of the Supreme Court of the State, to see what in fact was decided. From such inspection it is obvious that there was no decision adverse to the rights vested in the Northwestern Plank Road Company by its charter. On the contrary, the clear concession in the opinion of the Supreme Court was that that company had by its charter a valid and exclusive franchise in respect to the toll-road, including therein the right to take tolls, and to erect and maintain a toll-gate therefor. All the contract rights which it can be claimed passed by the charter to the plank road company were conceded to have passed to it, and the matter which was determined by that court, and upon which its decision rested, was that the franchises, thus vested in the corporation, did not pass by the deed made under the authority of the act of 1865 to Snell and his heirs in perpetuity. It was not denied that those franchises passed to Snell by the deed of August 5, 1870, but the ruling was that such conveyance did not vest in the grantee the franchises as a matter of private property, to pass by inheritance to his heirs.
In order that there may be no misunderstanding of the rulings of the Supreme Court we quote at length from its opinion (pp. 430-432):
"By the act of 1854, Gray, Filkins, Richmond, and their associates became a corporate body, with the right of perpetual succession, etc. This was the franchise of the
corporators. By the same act the corporate body received the right to construct and maintain a toll-road, and to build toll-houses, and collect tolls. These were the franchises of the corporation. The former franchise, that is to say, the franchise to be a corporation, cannot be transferred without express provision of law pointing out the mode in which the transfer is to be made. Coe v. The Columbus P. & I.R.R. Co., 10 Ohio St. 372; Memphis R.R. Co. v. Commissioners, 112 U.S. 609. The act of 1865 authorizes the sale of 'the franchise, the property, and immunities' of the plank road company, and specifies that such transfer is to be made by deed of the president. If the word 'franchise' as here used is broad enough to include the franchise to be a corporation, with the power of perpetual succession, even then, Snell was not thereby made a corporation under the old charter. He was merely vested with the 'right to organize as a corporation,' (Memphis R.R. Co. v. Com'rs, supra,) but such organization never took place. Neither he nor his heirs or representatives are claiming as the corporate successors of the plank road company. The appellants are claiming as the heirs of Snell the individual.
"'The franchise of becoming and being a corporation in its nature is incommunicable by the act of the parties and incapable of passing by assignment.' (Memphis R.R. Co. v. Com'rs, supra.) If Snell in his lifetime was the owner of such franchise by express legislative grant, he could not assign it and it could not descend to his heirs. He failed to use it for the purpose of effecting any corporate organization, and it died with him. Even if his were not so, his failure to effect said organization within ten days after the constitution of 1870 went into effect rendered it impossible, under section 2 of article 11 of that constitution, to give any validity to an organization made after the lapse of such period of ten days.
"If the franchises designated as those which belong to the corporation as distinguished from the corporators passed to Snell by the transfer, and if he had the right to maintain the toll-houses transferred to him and to collect the tolls therefrom, did such franchise and right pass to the ...