Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-02-28
RAILROAD TAX.
Upton County's Subscription to
the Paducah and Menu
phis Railroad.


The case was this: Wallace and 9th.
ers fled their bin in the Chancery
Court at Covington to enjoin the col
lection of an alleged county subscrip.
ton of two hundred thousand dollars
to the capital of the Mississippi River
railroad, now the Paducah and Mem
phis railroad. The latter railroad and
the County Court of Upton county
were made defendants. The injunc-
ton was granted by Chancellor Living
ston, of Brownsville. The defendant
having answered, denying the equities
of the bill, and Judge Livingston being
incompetent, because of relationship to
some Of the parties, to try the cause, it
was heard before Chancellor Walker
upon motion to dissolve the injunction
upon the bill and answer.
Wallace VS.. Memphis and Paducah
railroad ct al.
By the act of Feb. %, 1867, amend
ing the charter of the defendant COM
pany, it was provided that the counties
through which the road was proposed
to run, might make corporate subscrip-
tons tothe capital stock, to IAN amount
not exceeding two-thirds the estimated
cost of grading the road-bed through
the county and preparing the same for
iron-rails; the said cost to be verified By
the s1corn statement of the President OF
Chief Engineer Of said company.
The general public improvement law
of the State is contained In article III,
chapter l, 2 and 3 of the Code. By the
latter chapter, subscriptions to rail-
roads by counties and incorporated
towns are empowered and regulated by
general law. By section ], JAS it is pro-
yided, amongst other things, that be-
fore application for subscription can be
made, there must be IAN estimate OF
the grading, embankment and masonry
made by the Engineer, under oath, and
filed by the application
In the case of Winston VS.. Tennessee
and Pacific Railroad Company, decided
at Nashville, March, 1873, it was held
that the above quoted section was man
datOry, and not merely directory; and
that, consequently, a county subscrip-
ton Of stock made without the previous
u cuCA OnOAA Cclludlc WIS NOlu.
Therefore it must be taken to be de-
cided that that portion of the act Of
February, 1867, requiring the estimate
and verifcation thereof by the oath OF
the president or engineer, Is mandate
~, compliance Herewith indispensa-
bic to the validity Of the subscription.
Prior to the making of thissubscrip-
ton, A. S. Mitchell, President of the
road, filed his affidavit, in which he
made oath that the "cost of grading the
road-bed of said railroad through Tip
ton county, and preparing the same
for the iron rails according to the esti-
mates of the chief engineer, now then
in his possession, will (would) slightly
exceed the sum of three hundred and
eighty thousand dollars"
The question is whether this affda.
Wit is a sufficient compliance with the
act of February, 1867. For the COM
pany it is urged that the Legislature
must have intended that the president
might make the oath upon information
derived from the engineer, inasmuch
as presidents of railroads are ordinarily
not competent to make such estimates;
that to put any other construction upon
it would be equivalent to erasing OF
multiplying so much of the act as au-
thorized the president to make the af.
fdavit.
To this view, / cannot accede:
First-The act requires that the esti-
mate shall be verified by the oath OF
the President or Chief Engineer. 1t
would be great latitude of construction
to allow that requirement to be salts
fed by the one making oath that the
other had made an estimate, which he
had in his pocket, but did not produce
or file. 1t would better carry out the
intent and purpose of such a provision
to say, if the President could not make
the oath, the Engineer must; that the
act meant to allow the President to yer.
ify the estimate, provided he could do
so, but did not intend, if he could not
to virtually dispense with the verifca.
ton by allowing him to come as near to
it as he could. The act does not say
that the Presidents oath should 90 as
far as in the nature of things could be
expected of him, but that he might yer.
ify the estimate, /. e., make its truth
appear by his oath; if he could not, the
effect should have been to preclude the
attempt instead of his undertaking a
cypres performance, conforming, as
near as might be, to the requirements OF
the act.
2. How could the President verify
the estimate of the engineer? An es-
innate of the cost, of course, means an
approximation as near as may be, to
the cost, based upon an actual survey
and other necessary data. Now, the
facts and figures, and an estimate ar.
rived at, how could the President swear
that that was the veritable and bona
fde estimateof theengineer? He might
swear that the writing, figures, sigma.
ture and all were his, but he could not
swear that the engineer believed it as
near an approximation as could be to
the cost. In the nature of things nc
one could make such an oath but the
engineer himself The President could
and did but swear to the unsworr
statement of the engineer. The result
of which is that we have no sworI
statement at all, but only proof of an
unsworn one. Suppose that the esti
mate of the engineer had concluded
with certificate, signed by himself
and stating that the foregoing was his
estimate, etc. Would it have been suf
ficient for Mitchell to have proven hi:
signature by third person, or to have
produced in another form what purpor
ted to have been been the estimate OF
the engineer, and proved by third per
sons, that it was his estimate? thinl
not, because, from the very meaning o.
the word estimate" the fact is incapa
bic of proof, except by theparty making
it, no more than is Mitchell's proof thai
it was his estimate sufficient.
Suppose, for instance, that this esti-
mate had been SO hagrantly false that
even the President must have known
it, yet he could not, upon this affidavit
have been convicted of perjury.
Remembering that an estimate of the
cost means but an approximation to it
| think a proper construction of thu
feature of the act required that the
President, if he undertook the mattel
at all, should both make and verify tn,
estimate; that is, he should make it
| and swear that 1t was the nearest ap