Knoxville weekly chronicle. [volume] (Knoxville, Tenn.) 1870-1875, 1873-01-22
AN IMPORTANT LEGAL OPINION.


tiOn.
The following opinion from Chancellor
'emple, lately delivered, will be respected
1herever his learning and character as
chancellor are known and is of deep inter-
st to business men:
IN the matter of the petition of II. II.
Graft G.. A. Perdicars, y. G.. Richey,
and others, &c pdrte.
This is an application on the part of pc
titioners, who are citizens of New Jersey
and Pennsylvania, to be incorporated un-
der the name and style of 1.-The Poplar
Creek Railroad, Coal and Iron Company"
The petitioners pray TO be clothed with
the rights, powers and privileges necessa-
ry to construct and operate railroad, with
one or more tracks, commencing in An
derson county, at any point on the Noun
tain Fork of Poplar Creek near Dunna-
von's Gap, and running along the valley
near the base of Walden's Ridge so as to
connect with any railroad or railroads
now or hereafter constructed, or with any
navigable stream within thirty miles of
said Dunnavon's Gap, and on either or
both sides thereof, said corporations rail-
road to have any and all branches neces-
sary to reach any coal, iron or other mine,
&C., &c.
They also pray for the power of using
their capital or any part thereof in mining
and transporting coal, iron ore, salt, oil
and other minerals, in manufacturing and
refining the products of the same into any
shape and form, &C., &c, and with power to
erect on their lands manufactures, mills,
furnaces, FORCES, fixtures, machinery, &C.,
&c.
1t will be observed that the petitioner
asks for two different kinds of corporate
privileges, namely: One to build and OPP
crate q railroad with branches, and the
other to conduct mining and manufacture
ing operations. The petition is filed under
the act of January &c, 1871, which was pass
ed under the authority of the Constitution
of 1870, Article NJ, Sec. s, which provides
that the General Assembly shall provide,
10y general laws, for the organization of all
corporations hereafter created"
This provision of the Constitution, and
the said law passed under it, as gen.
crafty understood, are fraught with untold
mischief Even when most strictly con-
strued it is a problem whether the dele
CATION of such power to the courts is not
liable to abuse and dangerous to the well
fare of the State.
1t is hardly necessary to remark that
courts have no pOaQeT Of te9tStdtjoR, and
that any attempt on the part of the Legis-
lature to devolve any such power on them,
even under the new Constitution, would
be repugnant to that instrument. The
very first section of this act is probably
open to this charge, when it provides that
the decree granting the charter shall
--e1unlerdte such usual powers and privi-
leges of corporate bodies as may be neces-
sary to carry out the legitimate objects of
said corporation" Who is to Judge OF
what are usual powers, and of what are
necessary under this act? Clearly the
court (Sec. IA is even broader and more
latitudinous in comforting the power OF
legislation than the clause just quoted
Chancellor CooEr, in n recent opinion OF
great clearness, Fias said Oh this point: "
can confer upon them (the petitioners nc
privileges other than those prosorihnd by
the general law. Nor can / Gull out, al
the instance of the petitioners, some oi
the privileges conceded by the genetal law
to the exclusion of others. l can not, to
use the words of the court, in Mayor and
Aldermen of MOrrfstown VS.. Shelton,
Head, add to or diminish the powers
privileges and immunities granted, MOI
make the least change of any kind in the
charter, as prescribed by the Legislature
To do so, would be to depart from the
special authority under,which / act" s.
As was further declared in the case re-
ferred to by Chancellor Cooper, in l Head
the legislative will is, or should be, fully
declared in the act, and all the court has
to do is to see that the persons asking to
be incorporated have brought them
selves within the provisions of the
law, and if they have, to pronounce {
decree to that effect and put it or
statute, and kindred ones, acts as a kind
of commissioner under Legislative author
ity and he can act only as the statute
directs Sneed, Head; . Sneed, "a;
Sneed, 104.
The application of these principles to the
facts of this case is more difficult than t.
extract the principles themselves. Herein
lies the great difficulty in all these cases
And as this is an important case, and in
wolves the first application to me for q
charter TO build railroad, under section
Ia and sub-sectiOns, and as the petitioners
contemplate in good faith, eXpendinl
large sums of money under their charter
in mining, manufacturing and in con
structing a railroad, it is of the first i'm
portance that the charter under which
they operate should be valid one.
LIST. The first question is, can there bC
voluntary subscription" of stock by the
incorporators, without the intervention o
commissioners, as required in subsection
,. Subsection 3 speaks of stocks Sub
scrlbed by voluntary subscription or upon
books opened by the commissioners" anC
it provides that President and Directors
may be elected, which election may bC
conducted by the commissioners" "oranN
three of the stockholders appointed by thu
commissioners The last section of su b
section provides that the petition shall
ask "for the appointment of commission
ers TO obtain stock for the contemplated
Railroad" While the statute provide
for the election of officers undeHthe direc
ton of commissioners, il does not say i
shall he done i'm no other WaU IOOEin,