The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-04-07

seventh article OF the Hill If complaint
that under and by virtue of the law of
the State of North Carolina, the Gov
ernor and the Attorney General several
ly and exclusively and exclusive of all
other public officers are authorized to in
stitute proceedings al law or n Equity
in the name and in behalf Of the State
Of North Carolina.
8. That it is true. as this defendant
is informed and believes, that on the 18th
day of September, 1871. processing to
act in pursuance of the powers granted
in section nineteen of the charter Of the
North Carolina Railroad Company,
which section is set out in full in article
two Of compliments bill, the said North
Carolina Railroad Company did make
and execute the deed copy of which is
attached to the bill of complaint and
marked Exhibit 3D." and by said deed
did attempt to farm out and lease to the
Richmond and Danville Railroad Com
pany, a corporation then existing under
the laws of the State Of Virginia, the
property and franchises of the said North
Carolina Railroad Company, for a term
of thirty years; but this defendant de-
MES that the said lease was made in pur-
|
of the North Carolina Railroad Compa-
ny, or that the said attempted lease is
valid and binding upon the said North
Carolina Railroad Company.
1t is true that Immediately upon the ex-
ecution of said deed, the said Richmond
and Danville Railroad Company did en-
ter upon and take possession of the rail-
road of the said North Carolina Railroad
Company and continued to hold and oper-
ate the same until the first day OF Janua-
ry, 1896, under and in pursuance Of the
terms of said attempted lease; but this
defendant is informed and believes and
so charges, that the execution of the
said deed was procured by deceit and
fraud and was and is null and void; that
this fact was well known to the COM
plainant, its officers. agents and attor-
neys, at the time it purchased the pre-
tended lease of 11th of September, 1871,
and this complainant, through its Of
ficers, agents and attorneys, had full
knowledge of this fact when it entered
into the pretended contract Of lease Of
August 10th, 1895.
This defendant has no knowledge nor
information sufficient to form belief
as to the alleged issue of mortgage
bonds to the Central Trust Company OF
New York as trustee, as alleged in said
article, and therefore he demands strict
proof thereof.
9. That it is true, as this defendant
is informed and believes, that there was
n sale under what purported to be an
authorized decree Of the Circuit Court
Of the United States, of whatever inter
est the Richmond and Danville Railroad
Company held in franchises and property
of the North Carolina Railroad Company,
and that Charles III. Coster and Anthony
Thomas were declared the purchasers for
and on behalf Of the complainant; but
this defendant denies the conclusions of
law that any lease-hold or other interest
in the franchises and property of the
North Carolina Railroad Company pass
ed to the complainant by such sale.
10. This defendant admits that there
is no policy in North Carolina, nor laws
of said State, which forbid ownership
lease. maintenance or operation of a rail
road in this State by a foreign railroad
corporation, but defendant AYERS that
this comfy subjects the said foreign
corporations to the same control and
amenability to law as If they were do
nestle corporations.
IL. In answer TO the matters alleged
in the eleventh article Of cOmplainant's
bill, this defendant says; that in 1873,
the State of North Carolina, which was
then, and is now a large stakeholder in
the North Carolina Railroad Company,
in its sovereign capacity, by its Attorney
General. and not as Il stakeholder in said
Company. brought an action in the SUI
perior court of Wake county to restrain
the Richmond and Danville Railroad
Company, which then was in possession
Of the North Carolina Railroad by virtue
of the lease of 1871, from changing the
gauge OF said North Carolina Railroad,
and it was alleged in the complaint that
said lease was made without authority
Of law, and in the opinion of the Supreme
court upon appeal thereto, it was held
that the said North Carolina Railroad
Company is invested by it's charter with
full authority to lease its road with
power to change the gauge thereof. No
question as to the validity of said lease
was considered by the court except the
construction Of said charter section 10
of the Act of 1S49, and no allegation was
made in the complaint of trial or cor
TuDUlOH III lIt procurement vi Sdld lIdhoV'
This Observation-Disclosures says that said
decision was made by bare majority OF
said court. and the principle therein
stated, while it has been recognized as
applicable to the aforesaid alleged con-
tract of lease of 1871, by said court, has
never in this State or in any other State
or country been held to apply to any
other than the case then before the court,
this defendant is advised and believes
that no such rule of property as that
stated in the eleventh article of the bill
of complaint exists in North Carolina.
II. 1t is true that on the 21st day OF
February, 1885. the Legislature of North
Carolina passed an act, the title of which
is set out in article twelve of the bill Of
complaint, and which is published in the
Acts of the session of 1885, chapter los,
for the true intent and meaning whereof
reference is here made to said statute;
this defendant believes that said statute
has not been repealed or amended.