Wilmington journal., 1873-07-25
State VS.. Richmond & Dauyil;e
....r .. Railroad.

and WAS concluded yesterday. As it i
q matter in which a great deal of inter
est is felt by our people, we give be
low an outline of the argument DR.
and con. Some of the best legal tai
ent of the State was arrayed on eithe
side. For the State Hon. w. N. II
Smith, Attorney General Hargrove AMI
Bachelor, Edwards & Bachelor ap
peared while the defendants We're rep
; resented by Merrimon, Fuller & Ashe
/; Hon. d. G. Fowle. r. G. Badger, ESQ.
and G. V. Strong, Esq.
Our readers have already been in
formed of the fact that the case cam,
up upon an appeal by the defendant
from the decision of Judge Albertsol
sustaining an injunction granted BY
Judge Watts, restraining them from
altering the guage of the North Caro-
lima Railroad from Greensboro tt
Charlotte. 1t seems that the discus
sion was not confined to the question
as to the alteration of the guage, but
the legality of the present lease under
which the Richmond & Danville Rail
road holds possession of the North
Carolina Railroad was argued.
The State contended that the lease
was invalid that no North Carolina
Railroad had power, under its charter
to make such lease as this, and in the
next place that the Richmond & Dan
vile Railroad could not take the lease.
That it was against the public policy OF
the State for corporations created in
other States to acquire, by lease OF
otherwise, the franchises or right to
run, manage or control railroads in
this State, without the consent of the
General Assembly That the railroad,
being a public highway for some pur-
poses, was one of the public institll-
tlOns of the State, and the State could
aOt permit it to pass from under the
control and management of its own
officials andlntO the hands cf n foreign
corporation without the consent of the
State authorities expressly given.
No change OF the guage of the North
| Carolina Railroad could legally be
made in the arbitrary manner sought
by the defendants. It had been fixed
by law, and many OF the roads, char
tered and built in this State, had been
compelled to confirm their guage to
that Of the North Carolina Railroad.
The following is synopsis of the
line Of argument OF the defendants:
They insisted
l. That under the following sections
Of the charter of the North Carolina
Railroad Company, the power to make
the lease is plain.
''Sec. 6. ! i Bv the name
and style of sThe North Carolina Rail
road Company, and by that name shall
be capable IN law and in equity of prlr-
chasing, holding, selling, leasing and
conveying estates, real, personal and
mixed. ! so fan as shall be he
cessary for the purposes embraced
within the scope, object and interest
Of their charter and no further, i -
"S5ec. %. That the said company
may purchase, have and hold in fee
and for a term of years, any land,
| tenemcnts, or hereditaments which
may be necessary for the said road,
| &c.
''Sec IS That the said company
shall have the exclusive right of CON
veyance or transportation of persons,
goods, merchandise and produce over
the said railroad" sc.
''Sec. 10. That the said company
may, WHEN they see fit, farm ont their
right Of transportation over said rail
road, etc
2. That section 2S gives power to
obtain all such property rs the object
6 is inserted FOR some other purpose,
and i'll connection with section 2G
means, among ether things, the power
of leasing, necessary to carry out the
power of farming out their right of
transportation.
To 'Jul'Dt Out" means to tease and
nothing else. See Webster, Coke, ana
any of the elementary books.
Many authorities were cited to this
effect.
s. That as the charter Of the North
Carolina Railroad Company makes no
restriction upon their power to estab
lish or change its guage, that power is
protected by the decision in the Dart
mouth College case, and further that
the State had passed no law to forbid
the change.
Such right to change the guage was
transferred to the Richmond 4 Dan
vile Railroad Company, or, as the
North Carolina Railroad Company
could do such work by agent, that as
far as this Part of the lease is con-
cerned they have authorized it to be
SO done by the Richmond and Danville
Railroad Company.
T. That to the interest of the people
of North Carolina that facility should
be given to the country west of
Greensboro, for the transmission of its
grain, minerals, &C., to the nearest
markets, and that they should not be
dragged via Raleigh at great expense.
.. That the State of North Carolina
had no power to maintain this action;
it should have been III the name of the
Attorney General.
The use of her name IS not author
| l.
action shoull be dismissed.-Statev VS..
Shirley.
The Acknowledgement is not author
lied to use the. name of the State
See the Constitution and Public Laws.
Complaint does not set forth Il cause
OF action.
The grievance complained Of is the
change of gauge from Charlotte to
Greensboro Relief is asked to re-
strain change from Charlotte to
Greensboro.
No specific grievance is set forth in
the complaint.
Railroad charters b, ing private laws,
the charters OF other corporations not
having been passed cannot be read for
the purpose Of showing the injury that
would be done them by this change.
The suit can only be MA ntained on
tie idea of an indictabie nuisance.
There are no points here stated tC
support an Indictment.
The State gave its consent through
its regular offcers-the powers oi
these officers were derived through
public laws, and they did not exceed
their power. Practically, therefore,
the States assent was given through
public law-and to- allow this suit tC
be maintained would be asserting thai
lease which the State authorized
coule not be accepted, without sub
{ jectine the party to Indictment by The
; State, which would be an absurdity.
The matter of the lease WAS called
to the notice of the General Assembly
of 1872 10, They declined to take ac
tion. The matter of the change O
: guage was called to the attention of th'
General Assembly by the Governor il
his last annual message, and they palt
no regard thereto. This is an acquies
cence on her part-and as she gave TIN
a I l.