The New York herald., 1879-09-24
IMPORTANT RAILWAY DECISION.
THE PENNSYLVANIA RAILWAY CoMPANY-THE
NATIONAL DOCK COMPANY RESTRAINED.

TRENTON Sept. 90. 1879. (,
Chancellor Runyon fled opinion here to-day in
q very important railroad case. which gives sub
sautal victory to the New Jersey Central over the
Pennsylvania Railroad Company. completely turn
ing the tables on the latter. About month
ago the Central filed bill of much length
with the Chancellor, reciting that the Penn.
sylyania Company. under the guise of the
National Storage Company. &C., about to
construct road from the Pennsylvania road at
the point of rocks near Bergen cut the Cen
trail Railway to the National docks at Communipaw.
and alleging that such action unlawful. giving
various therefor. which at the time were
fully published in the HERALD. and winding up by
praying for an injunction to restrain the Pennsyl-
vana Company ct al from prosecuting tho work.
Each side was represented by eminent counsel and
the case fully argued IN tho Chancellors Cham
bers at Newark.
The opinion covers forty-seven pages Of legal cap
paper and winds up by saying that 'the proceed
ings should be stayed and there should therefore.
be preliminary Injunction BY it the constitu-
tonality Of the general railroad Law is maintained
and the jurisdiction of the Court grant the relief
is upheld. The proceedings of the National Dock
Railway Company are held to be. on their own
showings, fraud the general railroad law in two
respacs-hrst that the enterprise appears to be the
enterprise of the National Dock Company. which is
seeking, by means Of the organization in the name
of the National Dock Railway Company. to accom-
plIsh purpose which it could not accomplish di-
recy and next that the object is private and not
public One.
After an exhaustive review or railroad legislation
in the State special laws relating thereto the gen.
eral railroad law and Its amendments, the power of
the Legislature to grant the right of eminent do
main, the necessity for constructing roads, &C.,
and the citation of numerous authorities the
subject. tho opinion declares that. f the improve
ment was one Of public necessity utility, there
could be no judicial inquiry as to the propriety OF
the action OF the general railroad law in giving
power to condemn lands" &C. The opinion con-
..The compl .inants have valuable franchise under
the charter Of tho company. and have right to be
ized competition. The right to build and rail-
road for public is franchise the right to which
can be derived from the State alone Such franchise
is it's nature. and i'll the absence of express pro-
vision to the contrary. exclusive. except against
the STATE and those III invested with priv,
with the enterprise and competing road
established without Legislative authority will
opinion Of the Court in the Of the Raritan
and Delaware Bay Railroad Company the Della
build railroad tor public and to take tolls is
property, the title to which is held from the
ereign and like every other thing susceptible of pr
vate ownership it must of necessity be under the
protection OF the law Unless it can be shown that
this species OF right is altogether anomalous
in its character. and is under the control
Of exceptional rules, q wrongful invasion of such
right innot but be followed by legal vindication.
1t seems to me it must be admitted that the rule
of law opposite to the matter now in hand is
tirely settled When, therefore, tho complainants
obtained from the State the right to establish their
road / think that by the intrinsic force of such
grant such franchise was exclusive against all per-
sons but the State. competing road set up with
out Legislative license, is fraud upon such grant.
and Is d plain public nuisance.
cit is obvious that under the operation Of the gen.
eral railroad law the aid of the courts must be
corded to protect those who legimately enjoy rail-
road franchises well as property owners. against
the abuse Of the law by those who, under cover of
its provisions. illegtimately seek to avail them
selves of the power which it confers.
1t is within the province OF this Court to grant such
protection.
POWER OF THE COURT.
"It Is undoubtedly within the power Of this Court
(and it is its duty where abuse Of the general
Railroad law is attempted by the unlawful applica-
ton or its provisions to private use to restrain the
unauthorized proceedings. On the case as made by
the bill and afidavits the enterprise in question ap
pears to be unlawful corporation cannot in it's
own name subscribe for stock or be u corporator
under the general Railroad law Nor can it do so by
q simulated compliance with the provisions of tho
law through its agents corporators and
subscribers of stock.
Though five of the corporators of the National
Docks Railway Company directors. by their afi-
davits appended to the articles OF association
that the amount OF the capital stock required by
law to be subscribed and paid in good faith has been
in good faith subscribed and paid in cash to the
directors. and that it is intended in good faith to
construct and to maintain and operate the road.
and that the whole of the stock (S300 OO0 been
subscribed and $4,000 thereof paid in good
faith the directors cash, tho president OF
Storage Company. by his affidavit put in by the Ma
tionnl Docks Railway Company swears that the
Storage Company procured the several corporators
and stockholders OF the National Docks Railway
Company to organize that company. and that It was
done in the interest of the Storage Company,
Sut %n''n OF its own funds ali the means
necessary to purchase the right of way and con-
struct the road. OF the seven corporators 1t ap
pears that the majority are either officers or en-
ployes of the Storage Company. One is its presi-
dent, another its treasurer another engineer in
assistant bookkeeper. The stock is divided into
5000 shares of 500 each. or these shares 1889
were subscribed by the president of the Storage
e' three By each each of tho D' three e employees. a
that all the stock except six shares subscribed
by officers employees of that company. An attempt
by a corporation thus to avail itself unlawfully Of
the general railroad law to build railroad, will.
compliant OF party injured De en}oined M as an
ment to its charter power is given 10 the
Storage Company to construct a railroad from
Jersey Railroad between the Hudson and Hacken-
sack rivers and the power of condemnation Is
thereby granted 1t has not avaed itself of the priv
ilege thereby conferred perhaps because in oxercis
ing the power of condemnation II might be met
by the objection that the railroad is for private use
merely. BY the avowal contained in the affidavit OF
its presdentt appears that the projected road which
is to be its docks to the line of the New Jersey
Railroad is merely its private enterprise: that the
seven corporators are merely its agents and that it
in by this device attempting to do indirectly what 1t
could not do directly and to effect by means OF the
general law purely private purpose which it could
not effect under the special authority which the
Legislature attempted to confer upon 1t by the sup
ploment of its charter.
As far appears the road lie designed to answer no
public use but merely private one: is to be merely
the means by which the Storage Company IL to pro-
vide transportation for ITS merchandise from the
line OF the New Jersey Railroad across the Central
Railroad to its depots."
More litigation will follow. as the defeated party
will probably appeal from this decision. aud II looks
as IL the Court of Errors and Appeals Will bc called
upon to pass on the much vcxed question before
there Is end to tho controversy. The next scs-
sion of the Legislature will have lively time over
the matter as the rival corporations are working
hard for tho control of that body.
CANADA'S EXHIBITION.