American Lancaster gazette. [volume] (Lancaster, Ohio) 1855-1860, 1859-11-10

OF the reasoning OF the Court omitted as
unnecessary to an understanding Of the
propositions decided:
FACTS.
Tho FlaistilT, Mofris Kstchums ON. :,
is iks. Trustee for the Bond boilers. end
Is as such Trusted the Granteesof second
mortsgs given on The Ist Of March. IB53.
by the n, R. CO.. conveying he road and
franchiseS 10 SECURE the payment OF prin.
cipal end interesl OF 81 sO00. 900 Bonds.
This mortgage is subject to the FIRST mott
gage given on The LIST Of March. 1862. to
JamOs Ed. LsnieF. n. T., BY the Com
pany Tor $500. 900. covering the road
between Portsmouth and jackeoh. The
Plaintiff alledgss adefault in the payment
Of interest due op the bonds, covered by
the second morlageS mishAbagement OF
the road and its funds by the company.
and the insolvency Of the company. He
also sledges that the Arcade Bank OF
Providence. r. l.. holder Of $500 900 Of
The boudsAs seurity for an indebted ness
Of 81 $1,000; and Earl p Mason and
Isaac HartshoTn, also ofProyidencs. holders
Of 395 600 Of the bonds. as security for IN
indebtedness Of S146.OoO. have demand.
ed OF him that be enforce the nIortags as
their Hsstee All parties interested are
n ade defendants. The plaintiff 10 bis Pc
tition prayed the appointment Of q Re.
ceiver. the sale Of the road and it's frsbchi.
ses. and distribution OF proceeds
At the March Term Of 1859 Of the Per.
~ Co. Common Plesse.a judgement by
cefault for the sale Of the road, was allow
ed-to be tSkep, giving, however, to the
Company, or any other party. the right
within aspeei6ed time TO have the iadg.
meHt sci aside on coed cause shown: and
10 June, atLaBcsttet. the casa was fully
heard on the motion to set aside this
Judgment. and was ably and elabofately
sFeghed tor the Hla intiif by Hunter and
Daugberty and H. Stanberry: and for the
Compaby by Judge Thurman und o. r.
Moore. andby Vschel1 WorIbington Got
other parties A Receiver, Mr. WEBB,
had previously been appointed, in whose
hsnds the road slill is. 2 p.7 slsfs ~ =
PROPORTIONS DzcIDkp. 500
4. Tha! a rsilwsy in Ohio, is.a Public
Improvement. for the purpose Of which
'fhe Stale is justified IN calling into eyer.
else the, The Sovereign Rightlof Eminent
Domain" IN copdemning private proper.
~. for the use ofthe road. That, although
operated and controlled by private coppa
nies. the public has rights and Interests
which can only be diyested by Legislative
authority. e, ~.
2. No railroad corporation in Ohio can
either mortoge or sell its road Or corpo.
rat, franchises Without Legislative author
ily; but this authority may be given by
The Legislature. II u3t.
3, II would be injurious, and even dan.
yerou', 10 both public and private ,inr
isrests, 10 gather such authority from ion
picatioD; aud it should be clear aud OK
plicit. $3.50, ~ an N- r,.
4. No consent Of parties can give the
Power-or remedy The want Of tuch Leg
islsiive authority.
g. Even where the power is clearly given
BY law to a Railroad Company 10 mortage
It's road and franchises. it does not Of
necessity follow that sale is therefore
authorized on default of the mortage con.
ditions. In the absence Of express Legis.
laiive provisions authorizing sale 10 such
case, and prescribing the terms and con /,
diliops Of such sale. so as fully to guard
the public interests, as well as those of all
private parties. the presumption OF law
would be, thai .:be. Legislature only intend
cd that the mortgages OF the road should
have all such relief and security, whether
BY priority Of lien OF, Otherwise, ss could
properly be given them without sale. and
this relief must generally, il not always.
consist in the snbjrction Of the earnings Of
the road. after .rroper deductions for run.
ming expenses and repairs. to the pay mept
Of the mortage debt. I :,
9, Section 374 Of code prescribing a
sale Of mortaged property 10 all cases o.
foreclosure. does not apply to tho case OF d
mortage ofa Railroad and its finances.
In the case at Bar. the powers Of The
Company are governed by, the Genera
Railway Act Of Feb. H.. l848-- subject
TO which the Company was incorporated
by . special act passed Feb. 2O.l849.--
None OF the Legislative acts concernin log
Railroads, passed subsequently, to the acl
OF le@9. have increased the powers o
this Company as to the mortsge or sale o.
Is road;And the only power conferred upon
fAe Company 10 hsItsgs 10. that ontained
10 the bSSh section Of the Act Of I848
which 10 as follows; "Sec. l3. Such Com
pany shall have power TO borrow money OF
The credit OF the corporation not exceeding
1even per cent. per annum, aud may exe
cute bonds or pTomisory notes therefor
and 10 secure the payment thereof ma,
pledge their property and income of sucl
Company" The power thus given I,
pledge or moriage the property. and in
come Of the Company. does not necessari
ally include the power to mortage qth
road and lie franchises. The word prop
er,y may without violence be limited i
such property Independent Of the road an
franchises as the Compsny may own
And II is probable that such was the lin
itation IN tie minds Of the Legislatur
giving the poWer;ior il is hardly to be sur
posed that. while the Legislature was ex
pressly giving the Company power I
mortgage. it u intended 10 snthoriss tn
,rsnsfess'of the entise road and franchise
k should not in plain terms have, said 81
i They were undertaking By a.geners
law to regulate the whole subject Of Raj
roads. ye al properly 70 protect both put