The Leavenworth weekly times., 1878-03-21
'E'IEEE STATE .S. THE T... Z. & g. ~.
II. CCupasE.
smpOTIaH; CaSc-Tbe DeCi i>icn a:
Ea.ge Foster.

important; CaSc-Tbe DeCi,ion of
EHGge Foster.
he Z. s Circuit Cert j,r Tie Di@,sia Of
/ HsJi5as.
! Farmers Loan and Trust Company,
Trustee, ". B. ;. Henninc, Receiver OF the
/ LsavenwoTth, Lawrence aud Galveston
/ Railroad Company. In the matter OF the
/ application OF TIE Attorney General Tor or
| der on Receiver, etc.
WILLARD DAVIS, Attorney-General, and
H. T. JOHNSON, for the State.
| WALLACE PRATT and ;. y. THATCHER.
for respondent.
This proceeding is an application by the
Attorney-General OF the state O. Kansas
for an order on the Receiver of the Law
enworth, Lawrence and Galveston Rail
road Company to repair and operate said
railroad to the city OF Leayenworih, the
initial point named in Its charter.
The railroad is now in the hands Of said
Receiver, who was appointed by this court
in an action by the Farmers Loan and
Trust Company, Trustee, 10 foreclose its
mortgage agains, said railroad. The peti
ton Of the Attorney-General recites the
original and amended charters Of said COM
paDy, granted by the Territory snd State
OF Kansas respectively, and dated February
y 1858, and February -, 1861, by watch
said company was authorized TO construct,
maintain and operate arailroad from Leav-
enworth, by the way OF Lawrence TO the
southern line,of the state.
Also, the grant of lands by the general
Government 10 the State OF Kansas, 10 aid
IN the construction OF said railroad, dated
March 3, 1868 the act of the Legislature
accepting said grant by the State, and trans
ferring the same to the said railroad com
pany, dated February Is, le6l; and the
acceptance by the company OF the Congres
sional grant and Of the provisions OF the
said legislative act. dated March II, 1864
the State grant of l25, 900 acres Of land, 10
aid an the construction of said railroad,
dated February 23, lSG6. and the accep-
tance OF the same by the company, dated
May 10, loG6.
! Also, an act OF the legislature changing
the name Of said company from the Leav-
enworth, Lawrence and Fort Gibson Rail
road Co, to the Leayenworth, Lawr, nee
and Galveston Railroad Co., approved
February "a. 1866.
And the said petition further alleges
that said Railroad Co. did. in pursuance Of
its charter and agreements, construct, and
since the year 1872 did operate and main
tain, its road, from point OF junction with
the Kansas Pacific railroad, on the north
side of the Kansas river, opposite the city
of Lawrence, TO the south line Of the State,
and did, under an agreement with the ham
sas Pacific company, run lis cars and trans
port its freight and passengers over said
last-named railroad, from its junction there
with 10 and from the city of Leavenworth,
thus making a continuous line from said
city uid Lawrence 10 the south line OF the
State. That said Henning was appointed
Receiver of said railroad by an order Of
this court on the 9Th of March, 1875, and
that said Receiver continued TO operate and
maintain said road, as aforesaid, until the
Sth day of June, 1877. That since said
last mentioned date said Receiver has re-
fused and neglected, and does still refuse
and neglect, TO operate said railroad from
Lawrence to Leavenworth, or to run its
cars tor transporting freight and passengers
TO and from Leavenworth. under said agree
ment with the Kansas Pacific Company,
and has abandoned said line OF road, and
refuses and neglects to maintain the bridge
of said company across the Kansas river at
I
remain unused and 10 go to decay, to the
great damage of the commerce of the State.
and especially OF the cities of Leavenworth
and Lawrence, and TO the detriment of the
travelling public; and praying for an order
that said Receiver he required 10 repair
and maintain said railroad and bridge, and
operate said road, as heretofore, from Leav-
enworth to Lawrence, and from thence TO
LII ii ct. I
by its said charter.
To this petition the Receiver fled gcn-
eral demurrer.
The allegations OF the petition standing
confessed, and no question being made as 10
the form of the proceedings, the main ques-
, ton is 10 determine what obligations and
duties the railroad company owes to the
State, under its charter and the grants OF
| land by the General Government and the
, State, and the acceptance thereof by said
company. And to these questions the ar
guments Of counsel have been addressed
and have taken wide range.
1t appears to be well supported by author
ity and reason that the powers and privi-
leges granted by the charters of this COM
pany are permisive only, and not obligatory,
and the company could elect whether il
would proceed TO exercise the franchises
thereby granted. or whether it would not
And if it chose the latter course, the only
penalty would be forfeiture OF the rights
and privileges conferred.
York q North, Midland X. Il. Go. vs. the
Queen, | Ellis X Black, $50.
State of Minnesota vs.. the Southern Min
nesota Il. T. Co., IS Mimi, 40.
Highs Ex-Legal Remedies, Sec, 3l6
1t was held by the Court of Exchequer
Chamber. in the case first above cited, that
the mandamus would not lie to compel the
company to exercise its franchises as to a
part of the route named in its charter, and
abandoned by the company, when it had
not actually proceeded to build or operate
} its road over the part abandoned, and no
, corrupt motives are imputed TO the compa-
nv in abandoning the line But when the
company has once built and operated It's
railroad between the points named in its
! charter, the case seems TO stand on different
, grounds, and it seems the company may be
compelled, by mandamus, TO carry out the
objects for which it was created, and to ex-
ercise its charter obligations.
The following cases sustain and carry out
this view
. State vs. the Hartford & \. III. Il. f. Co.,
30 Conn. 53S.
} King VS.. Severn & Wye r. Il. Co., . Barn
4 Aid. GA.
Heigh's ex-Legal Remedies, Secs. 81, 3i9
$40.
The people ez-rel, vs. the Troy & Boston
Il. II. CO., 81, How. Pr. i27.
!. The people VS.. the Albany & Vermont X.
r. Co., "a y. Y, POI.
Same case, 81 Barb, 2l6.
The case last cited has been referred to,
by defendants counsel as a strong case in
defendants favor, and it is urged that the
only remedy of the State is to take pro-
ceedings to annul and forfeit the franchises
of the company. But upon examination
of the case in the 24th New York, it will
be seen that the opposite doctrine is held by
a majority OF the judges. That proceeding
was not by mandamus, but was proceed
ing by the Attorney General for an injunc-
ton, and for the specific performance Of the
charter obligations of the company, and
the main question to be decided was
whether such a proceeding could be sus
tanned.
1t is true JudgeWright, who delivered the
opinion of the court, went farther, and not
only argues that the action could not be
maintained, but that by no proceeding
could the company be compelled to keep up
and operate its road, and that the only
remedy the people had was indictment or
proceedings to forfeit the franchise. But
while all the judges concurred in the con-
eiusioR, i. e., that the judgment OF the Su-