The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1882-12-13

+ -
amber Term 1872.
The STATE OF MIsslssIrPI,
"
zNve. M.&TRR eoxpxxr.
This is a position for . writ of mau Janus 10
mpsl tie defendent 10 eonstrueS. and MAIN
in in the central portion of Pearl river
iere said railroad crosses the same a draw
idge which, when open, SHALL give a clear
ace for the passage Of vessels of not less
an sixty feet in width, AID, at al times
GREATER. to provide that the sane shall be
en- for The Passag &c Of any and sll yess Is seek
Z 10 pass through the same without uRneces-
~ delay.
The petition among otner things ayers that
the terms Of the charter Of the New Or
ans, Mobile Texas Railroad Cosnpa or
Their b. the provisions Of the act of the
.gisia.ure Of the State Of Mississippi au-
orizing and permitting is construction a. d
peration through said State, it is Conditional
lst said company should, whenever the said
abroad might cross Pearl river in this State,
ree5 aaI maintain drawlrijEe Of sufficient
'd,h to permit vessels Of sky feet n width
pass and repass withoutnanecessar deten
\; that said company has Iisreg srled the
pAov.sions and violated the conditions Of said
statute, and has constructed its rod across
said river without the erection the required
drawbridge and has thereby thrown an OBJ
siacle in the way Of commerce Oh sal river
and committed nuisance most detrim entail to
the interests oftle citiz4ns Of this state. The
petition concludes with the prayer that the
said NUS lnce % abated and the defendent
be reqp' rel to construct said drawb bridge aud
maiut.ia tn. same as provided by said statute
The writ vas awarded in accordance with the
prayer, AMI the case Is now in this court
by removal from the Honorable Circuit Court
Of Hancock county.
To the petition the defendent has interp0sed
its demurrer and with its demurrer, without
prejudice thereto, has filed its answer to the
m erits, to which the State has filed its demur
rcr. As the answer and demurrer thereto
| more fully present the facts aud issues for de-
cision, the demurrer 10 the petition will be
oyerruled and that to the answer considered
The answer admits the construction of said
| railroad across Pearl river and admits thai
| the draw bridge where said railroad crosses
| vessels of sky feet to pass, but AYERS thai
defendant did erect and has maintained 9
bri lge over said river with draw of from
thirty four to thirty-six feet. The answer de-
MES that the defendant was required to con
| struct any drawbridge at said point anC
AYERS that in any case the one already con
strueted is sufficient for all purposes of com
meree, present or prospective. The answer
further relies for a defence to this proceed
ing upon the act of Congress creating defend
ants said railroad a post road, etc.
This is all that need be stated to an under
standing of the ques ions presented.
| The act of the Legislature of this State au
thorizlng the construction of defendant
railroad after various provisions stipulates a
follows:
Provided, howsver, That in the central por
ton of the channel of the Pearl river, of tn
Bay of ST. LOUIS, Of the Bay st Biloxi, and o
The East lPascagoula river, and in each o
| them, said company shall construct and min
tain drawbridge. which, when open, shall
give clear space for the passage of vessel
of not less than sixty feet in width, and sale
company, after the construction of said draw
! bridg g, shall, at all times thereafter, provil,
that sad rawbridges shall be opened for thu
passage of any and all vess els seeking to pas
through the same without unnecessary delay
progided, h0tgerer, that in case The compan,
shall locate the line of their road across thu
channel OF tie Rigolet, at point south Of, OF
below the principal entrance OF Pearl riFel
into the Rigolet, then the said company shall
not be required to construct drawbridg,
across any bayou leading into Pearl river, o.
across any small pass or mouth OF said river
1t is contended by counsel for defendant
that the line OF defendants road having beer
located at point south of or below the prin
eipal entrance to Pearl river into the Rigolet
the defendant was not therefore required t.
construct drawbridge in the channel of tbs
Pearl river To determine the correctness o
10 VIZ rgiu natl
to this provision of the Statute.
| am satisfied that the Legislature designed
that the bridge should be erected across the
main or East Pearl river, and that, in the
| event the line of the road should be located
| al point South of, or below the principal
entrance of Pearl river into the Rigolets
then, the company should not be required Il
| erect such bridges across any small pass oil
any small mouth of said river, the words
| ANY small pass or mouth of said river only
embracing small bodies of water commune
eating it'll the main body over which the line
of the road might pass. | am further Statistic ed
that the construction of the bridge rs provi-
dGd for in the act of the Legisl tture, before
referred to, was p condition precedent 10 the
privilege granted the company to cross Pearl
river, and that the placing Of the bridge
across the river without the draw as required,
created an obstruction to the navigation of
| the river at that point, in violation Of the
terms as well as the spirit 0: the act
! The State had the right to impose any con-
ditions it saw proper; the Legislature, the
| people in their representative capacity, baing
| the sole judge as TO what should be granted
and what reserved for the benefit, whether
real or fancied, Of those represented by it.
| Therefore The court cannot consider whe ether
the interests ofthe citizens of the State will
be rejudiced or promoted by the enforc I'm mt
of this provision of the statute.
As circumstance throwing light on the in
tention of the Legislature, it is urged by
defendants counsel that previous to and at
the time Of the passage of the act of incorpora-
ton all the commerce upon Pearl river made
its way to New Orleans through channels
west of the mouth of the river, but we must
presume that the Legislature looked to the
future development of the country lying on
this stream. extending as it does far into the
interior of the State, and especially regarded
the immense forests of pine aud other timbers
contiguous TO the river and its tributaries,
which constitute the chief lumber supply of
the State. and now finds its way not only to
New Orleans but to almost every part of the
inhabitable globe; nor can it be presumed
that the Legislature was ignorant of the efforts
then being made and those in Contemplation
to deepen the passage for vessels landing on
the east as to bring about an interchange
Of commodities between US and the world.
| am satisfied that the act of Congress in re-
iation to defendants road and the privileges
granted to it was not intended to interfere
Win any OF the relations between the STATE
and the company.
Congress required-the company to construct
draWbridges over East Pascagoula river and
the Bays Of Biloxi and ST. Louis sufficient for
the passage of vessels eighty feet in width
These being nayigable waters, Congress had
the right TO impose any restrictions II saw
proper, and as a matter Of facts the restrictions
imposed as regards these waters were more
stringent than those imposed by the State It
might have imposed tire same restrictions as
to Pearl river, but doubtless it deemed those
imposed by the State sufficient, or as to this
river, was willing to leave the question to the
Legislature Of the State.
The act of Congress further provides that
the privileges, thereby conferred, shall not go
into effect until the road is constructed, COM
pleted and in use in accordance with the laws |
Of the States through which the same passes. |
| am satisfied that the answer presents no
defence to the petition Therefore the de-
murrer to the answer must be sustained and
the relief be granted.
The Commissioner of Internal Reve-
nue goes out of his own bailiwick to
recommend the repeal of the tariff on
sugar which yields s45, 900, 900 of reve-