_Electoral Votes._
For Lincoln and Hamlin 169
For Breckinridge and Lane 61
For Bell and Everett 57
For Douglas and Johnson 9
For Doubtful 7
----
Whole electoral vote 303
Lincoln's majority over all, certain 35
If Oregon and California vote for Lincoln it will add to his majority 7
---
Total 42
TILDEN TO W. H. SWAYNE ON THE PROCURING A CHARTER FROM THE STATE OF
OHIO FOR THE PITTSBURG, FORT WAYNE & CHICAGO RAILROAD
"_Dec. 6, 1860._
"MY DEAR SIR,--Two modes of investing the future owners of the P. F.
W. H. R.[29] with a corporate character within the State of Ohio have
been suggested.
"1. One is to make them a corporation of the State of Ohio--by creating
them a new corporation, or by continuing to them the old corporate
franchise.
"I understand Mr. Stanbery and Mr. Hunter to propose the latter
method. By providing for the transfer of the existing franchise to
be a corporation by a general law, they avoid the constitutional
provision that 'the general assembly shall pass no special act
conferring corporate powers.' They think, also, that by preserving the
identity of the existing franchise they can avoid the operation of the
constitutional provision 'that in all cases each stockholder shall be
liable over and above the stock by him or her owned, and any amount
unpaid thereon, to a further sum, at least equal in amount to such
stock,' upon the ground that the provision is not retractive, and was
established subsequently to existence of this corporation. They think,
also, that although the identity of the corporation will be preserved,
it can be discharged from liability for the debts and contracts which
it has made. If it should be found to be liable for those debts and
contracts, the main object of the reorganization would fail.
"2. The other mode is to make the future owners a corporation of
Pennsylvania or Illinois, and to enable that corporation to hold,
maintain, and operate the part of the road which is situate in Ohio,
without being a corporation of the State of Ohio.
"To enable a Pennsylvania corporation, for instance, to hold, maintain,
and operate the part of the road situate in Ohio two things are
necessary:
"_First_, that it should be endowed by the law of its creation (which
would be the act of Pennsylvania creating it), with capacity to hold,
maintain, and operate the part of the said road which is situate within
Ohio.
"_Secondly_, that it should have the consent, implied or expressed, of
the State of Ohio to the exercise within that State of its powers to
hold, maintain, and operate the part of the railroad situate within
that State.
"Such consent in this case will be implied, unless the implication is
negatived by express legislative declaration of the public policy of
the State.
"As the laws of Ohio allow an individual purchaser to hold, maintain,
and operate the railroad--which individual might be a non-resident--and
as there is no policy established by legislation or by a judicial
construction to disable a corporation of another State having the
requisite capacity from doing so, the case comes clearly within the
principle on which nearly all the acts of corporations in other States
than those of their creation are sustained by the courts as lawful.
"The rights of the State of Ohio are not violated; for it is by her
consent that these powers will be exercised within her dominion. That
consent could have been withheld. I do not say that it might not be
withdrawn by legislation, not so as to divest rights of property
which accrued while it existed, but so as to produce inconvenient
consequences to the tenure of the corporators: nor will I advert to
the fact that a vast number of transactions are daily carried on in
some of the States by corporations of other States, subject to the same
possibility, or that in some States, as in New York, most corporations
exist subject to full legislative power to repeal the act conferring
the franchise.
"For I have not doubted--I have uniformly expressed the opinion that in
a case of the peculiar nature and vast importance of the present it is
wise to obtain an express consent.
"Shall that consent be given by special act or general law? Would it
have any effect on the extent of the liability of the corporations?
"The essence of the corporate character is that several individuals are
united in one body--enabled to exist and act as an artificial person
created by law, the members of which can change without impairing the
identity of that body of person.
"The code of regulations, according to which it exists and acts, which
fix its _modus_ is incidental to that creation.
"Its other powers, which may be and often are possessed and exercised
by natural persons, are not, strictly speaking, corporate powers,
such, for instance, as making discounts, granting insurances,
operating railroads; there is nothing in the nature of these powers
which necessarily confines them to corporations. They are not of the
essence or of the incidents of the corporate character. I think the
prohibition of the Ohio Constitution that 'the general assembly shall
pass no special act conferring corporate powers' is a mere paraphrase
of the prohibition of the New York Constitution, contained in the
following provision: Corporations may be formed under general laws,
_but shall not be created by_ special act, etc. The next clause of the
Ohio Constitution provides that 'corporations' may be formed under
general laws.
"The provision was, in the main, copied from the Constitution of New
York. The modification of details accounts for the change in the
collocation.
"In a cursory review of the discussions in the Ohio convention I see
no trace that anything further was intended by the prohibition than to
interdict the creation of corporations by special acts.
"That construction accords with the true meaning of the words
'corporate powers,' which is powers essential or incident to the
nature of the artificial being created by law--such as the power to
take a common name, to have corporate succession, to contract and be
contracted with, and to sue and be sued as one person, etc. These are
properly corporate powers. It is true the words are sometimes used to
include all the powers which the particular corporation possesses; but
that is a loose and inaccurate use.
"I think that the correct interpretation of the publication is that
it simply forbids the creation of a corporation by a special act of
incorporation--nothing more. It does not forbid an act operating to
enlarge, modify, or restrict the rights of an existing corporation,
any more than it does a similar act in respect to a natural person in
a like case. Still less does it forbid such legislation in respect to
a foreign corporation. It is enough for the present case to say that
the clause does not prohibit a legislative recognition or an express
sanction of an existing comity of the State in favor of an existing
corporation of another State.
"1. I am, therefore, of opinion that a special act declaring the assent
of the State of Ohio to the exercise within that State of all the
powers necessary for a beneficial use of the Pittsburg, F. W. & Chicago
Railroad by a corporation of Pennsylvania or Illinois, which should
have become the owner of the part of such railroad situate within the
State of Ohio, would be valid and effectual.
"A general law would, of course, be somewhat preferable, as it would
avoid this question. If it is certainly attainable, I would seek our
legislation in that form.
"But I foresee the possibility that it might excite more jealousy than
a special act, because its full application and use cannot be certainly
anticipated. I foresee, also, the possibility that it may affect
special cases of existing interest, prejudice, or passion, of which I
am ignorant.
"In the first section of a draft of a general law which I have hastily
made at a suggestion, I have tried to avoid the first of these two
objections by limiting the cases to which the law applies.
"1. An existing railroad.
"2. Partly situate in Ohio and partly in some adjacent State.
"3. Sold under an existing lien.
"4. Acquired by a corporation of another State in which another part of
the same railroad is situate.
"5. Such corporation acquiring the part of the railroad situate in that
other State.
"6. Of course, such corporation having the capacity to take and operate
the part situate in Ohio.
"Perhaps I may have put in more limitations than are necessary.
"Whether the measure will run foul of any other interest can be better
judged of by men conversant with the state of affairs in Ohio and in
its legislation.
"The general law, as proposed, is not more liberal than the existing
consolidation act of Ohio. We ought to be able to obtain it. If there
is a strong probability that we cannot, we ought to obtain a special
act of a similar nature, applicable only to our particular railroad.
"2. The advantage of not making the corporation a creation of the State
of Ohio is that it certainly and unquestionably avoids this double
liability of the corporators imposed by the Constitution of that State.
"The degree of liability to which the individual corporators shall
be subject is a part of the code of regulations specifying the mode
and conditions of the existence and action of the artificial being.
Sometimes it is nothing beyond the stock paid in. Sometimes, as by the
Ohio Constitution, it is a limited amount beyond the stock paid in;
sometimes it is absolute, as in the case of partners. It is not of the
essence of corporations--it is a regulation imposed by the sovereign
who creates the artificial being an incident to the particular
corporation. Nobody but that creator could impose such a regulation.
The most any other State could do would be to refuse its comity to a
corporation until it should get the regulation imposed by the lawful
authority of the State of its creation.
"Besides, the provisions of the Constitution of Ohio applies only to
corporations created by or under the laws of that State. It does not
purport to operate on corporations of other States transacting business
in Ohio under the comity of its sovereign.
"3. In respect to the general act proposed by Mr. Stanbery and Mr.
Hunter, I think they should prepare it and that we should co-operate
in procuring its passage. It would be open to our choice if on
consultation we should prefer to act under it; and it would be useful
in other cases. My idea originally was to have that general law and a
special act for the Pittsburg, F. W., C. R. R. If we change the latter
to a general law, it makes two of that character; but I do not see any
objection if we can get them both passed.
"I should like to have a copy of the draft of such an act as Mr.
Stanbery and Mr. Hunter propose.
"The draft of a general act which I send contains provisions which
ought to be considered as consulted upon. I have prepared them without,
perhaps, sufficient study of your laws on the subject, and without
knowing the temper of your Legislature.
"In some particulars they must be regarded as mere suggestions.
Consider--
"1. The clause of Sec. 1, subjecting the company in respect to its
management of the part of the railroad to the duties and regulations
imposed by your general laws--whether there is any provision which
should be accepted, whether this clause ought to be made more stringent
in order to be satisfactory to your Legislature. But care should be
taken not to use expressions which could include the personal liability
provisions of the Ohio Constitution and laws.
"2. The clause of the same section subjects it to be--
"Section 2 is intended to give the same power as to mortgaging the
rolling stock, etc., which is contained in the Pennsylvania act. I do
not think this ought to be objected to.
"Section 3 is an adaptation of a clause proposed last summer.
"I cannot send a fair copy of the special act without losing a
mail. The general one is sufficient as a basis of consideration and
consultation.
"I would like to have you consider the matter, and must contrive some
way to meet in consultation.
"I address this letter to you, though its contents are for Mr.
Stanbery, Mr. Hunter, and Judge Sherman, to whom I pray you to offer my
best respects.
"Yours truly,
"S. J. TILDEN."
"_W. H. Swayne, Esq.,
"New York, Dec. 6, 1860._"