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

l6AS. Such Was the casa VIXEN, the Co.
Iuhbus. Pnuaand Indiana Railfoad Com.
many, which, wa.1ineoruorated in 1e4e
under ths sctof !B5a An amendment
10 the chsrtef was made March ID. 1851
Additional power was given The eoupsaV
to borrow menev. and 70 secure paymsal
the directors were authorized "to pledge
by mortgage or otherWise Re entire road.
fixtures and equipments. with all the ap-
pnrlenances ;ino come and resources thereof, ;
&c DC; though even in this ease 1t W II
be noticed that no express poEef. of sale
was granted. 1thas been urged in dtpuS
meut that the power 8 iyeu in the act OF
fS48 to borrow money properly and nee
essarily includes tie right 10 mortgages the
road snd fta1obises as security. Now, il
il be even conceded that the power to
borrow money, when given a railroad
corporation. includss the power to NOR
gage the road and franchises, which doo-
trile. however, is by no means settled, J
hat can only apply in case where there
islno limitati3h imposed by the law on
the nature and extent OF the mortage pow
Ter. 10 THIS case there is Limitation, viz:
'pofhe PR petty aud Income Of the com.
paby." The General railroad act Of ! 848
does not then autborise any company to
mcrgags is road snd franchises. ~, -
But. even if,it be, conceeded that the
act OF IS48 does authorize the mortgage
of'the road and franchises,n BY no means
folloNs that a sale is therefore authorized.
The Legisla ,nre might well enough con-
clude 10 grant the one power, and with.
hold the other. They. are not nece ssarily
dependent on each other. Valuable and
exclusive rights msy. by the mortgage, be
given to the mortgages. PrioI tiles Of
lien may thus be held; additional security
may thus be possessed by them, And it
was entirely competent for the Legislature
70 thus grant exclusive rights by way OF
mortgage. .and 10 leave @ the, parties
resting upon their. mortgage rights and
remedies, without extending the addition,
al rightof sale OF the norigaeed properly,
and lbs presumption wopld be that snoh
was the intention Of the Legislature, from
the fact that no provision whatever, pre-
soribirg either the terms or manner CT
such sale, or for any appraisment Of the
property, ,sor guarding in any way the
righls Of the public. or the stock holders,
are embraced in the law. 1t is wholly
silent on the subject Of a sale, and the
existing remedies as 10 The sale Of mort.
gagged property, it must be admitted,
are .inspplicabs to the sale OF railroads.
II is TO be presumed that the Le0isla,
iure Intended to give tbe high power, BY
. general law. to sellsll the railroads With
their franchises. in the State. which
might be pnder mortgage, with conditions
broken, without prescribing a safe and
proper mode OF both appointment and
sale, and without the most careful and
Jealous protection to all ibe vast interests.
both public and private. ibyoiyedg Such
presumption is repelled by the nature OF
the SUBJECT matter. the spirit and the
terms OF the act Of 1898, and the subse.
qnent Legislation referred to. ftv 'ffst
u follows as alegalconsequenc 10 the
foregoing conclusions that when the
Company ia this case undertook to mcrt.
gage tie road and its franchises, they
acted without authority of law 10 that y.
tent. They had power to nortpspe The
income of the Company, and any outside
property the Company owned ,ndst en-.
dent of'tbe road and franchises. but no
more; and no ctnsenfof parties could OF
can aid this deiect of power. The law
alone can give the power. 1t alone can
diyest the Company OF its franchise and
the public Of its interest, and pass them
10 others. So far, then. as the morig ages
sued upon here attempt 10 convey the
road and its franchises, they are iDvalid,
and eaanot De enforced ds'n,oyigoges; and
thislegal result, in the opinion Of the
Court. is not only in on'ormity with
saund principles, but sustained by TIE
! great weight Of the authorities properly
bearing on this case. 'S ''"E3 ''e tla'
During the argument, good deal was
said as 10 the momentous consequences in |.
volved in the case 10 Interested parties,
and as 10 public policy, public and private
good or bad faith, &c. Courts ol Justice
when they prop r'y discharge their duties,
look only to'the law ofthe given case, and
declare itas they 6ud II TO be- II they
either omit 10 do that or 60 beyond il.
they sadly farl in their duty, and become
dangerous to th"conmunity. But il per-
mrted to pass upon the suggestions ol
counsel, would say that sm unable to
perceive that the bond holders or others
P rwh - - 4.