The times. [volume] (Richmond, Va.) 1890-1903, 1897-02-12
SUPREME COURT OF APPEALS
TWO OTHER IMPORTANT OPINIONS.
Sherwood aud Others Against the Atlantic
and DanviiIe Il. H., Msndamus Refus-
ed-Fereuscn a. Co., and Others Against
Dsughfrcy and Others Reversed.

Appeals yesterday:
Sherwood, etc. vs.. Atlantic and Danviiie
Railroad Company:
This was an application for writ OF
nandamus, which was refused. Opinion
by Judge Keith.
BY the charter of the Atlantic ana
Danvile Railroad Company 1t was en-
powered, among other things, 10 construct
a railroad through. ETC., 10 point Oh
Elizabeth river IN or near Norfolk, or
In or near Portsmouth. and TO con
struct branch roads In this state. The
road was completed TO West Norfolk, ana
September e. 1891, the company executed
q mortgage conveying all It's property
and franchises then owned OF thereafter
acquired to a trust company. Afterwards'
In consideration OF "A subscription Oh
sl5OOOO to the capital stock OF the COM
pany. and the issuance of city bonds
payable In thirty years in payment there
OF, the company agreed TO lay It's track
from the then terminus, about seven
miles. and establish its terminals, de-
pots shops. etc, In the city limits OF
Portsmouth; and also TO abolish the pas
senger transfer business then existing
between Norfolk and West Norfalk, and
to do its passenger and local freight bus
mess through Portsmouth exclusively
The company has never prospercd I'M
der this agreement, which 1t executed In
good faith Though IT was advantageous
to Portsmouth, and finally became bank
rupt and went into the hands OF "A re-
eeiver. Sale followed. and the purchasers
adopted the name OF the old company.
After sale confirmed, but before convey
ance made the purchasers requested re-
ceivcr 10 Immediately abandon the Perts-
mouth terminal. which, under the IN
attractions of the court, he did. removing
tracks. depots shops, etc. The purchas-
ers had full notice of the contract mace
by the old company with the city. Inc
Portsmouth terminal. however aiford'd
Inadequate facilities, and was lar less
convenient and desirable than the Tor
mer terminal. and entaied considerably
more expense.
The claims allowed by the court at time
of sale as having priority over the mort
gage. amounted to nearly million DOL
lars -Four million dollars of mortgage
bonds were aso represented I'm the SUIT.
The price obtained was sl.1O5OO0, so the
debt secured by the mortgage realized
only about three per cent
Held: I. The contract between the old
company and Portsmouth is not binding
I'm the new company. All contracts OF
liens subordinate to the mortgage cease
10 be an obligation upon the purchaser
at the mortgage SALE and purchaser
takes the property free OF and discharged
from all such liens and contracts. Other
wise II would put an end TO purchasing
railroads. Hoard VS.. G. & o., Railway
Co. 123 IT,. S.. ZIG; People VS.. X. w. d ..
Railroad Company, 1913 n. y. Z, 20.
The right TO a mandamus as arising
ba contract must therefore he de-
MED
2. Under its charter ii was compelled
10 make its terminal on Eliza
beth river. but it was option
al with the company whether In or
near Norfolk. or in or near Portsmouth.
IT was required to have but one such ter
minal. To allow the mandamus, would
be to compel the company either to main
tain two terminals on Elizabeth river. or
else to abandon the one at West Norfolk.
which would be to impose duty upon 1t
not required by its charter, and to de-
prive IT of the option conferred therein
3. Section 1894 of the code, amended
acts 1912. p. 623 construed 10 mean that
"a new company succeeding an old one Is
bound to fulfill all charter obligations Of
the old company; and may be compelled
10 do so by mandamus without the same
limits that the old company might have
been: but the distinction is between pow
ers and duties conferred the performance
of which may be compelled and such as
are merely permissve
In constituting a statute II is the duty
of a court to ascertain and give effect TO
the legislative intent. and TO that end il
must consider the object of the statute
and the purpose sought to be accomplish
ed 1t must give the words used their
usual Specifications and to every word
and part of the statutes. If possible, its
due effect and meaning. ii must not
place a forced and strained construction
upon the language thus enabling itself
to do what in its judgment, the Legisla-
ture ought TO have done. rather than TO
enforce and interpret what the Legisla-
ture has done. which would be arrogat-
ing itself a power susceptible of great
abuse. The intention is always TO be-
sought by fair construction of the Ian
guage used. attributing TO the words their
ordinary and popular meaning. unless il
plainly appears that they were used in
some other sense.
II the intention to impose an additional
duty upon the new company. he assumed
and the fact be found that it failed TO
accomplish the purpose. then repugnancy
TO the intent is established; but why sucn
an assumption? why should an addi-
tional duty have been imposed on the
new corporation? IL may be that such
was the intent. II Is mere conjecture 10
say that 1t was. and that intent not hav-
ing been expressed the court can not
interpolate 1t by construction.
The conclusion is unavoidable that tho
act does not impose any duty upon the
new company which did not rest upon the
old one
4. Under the charter the old company
was permitted. but not required. 20 build
branch roads. Having built this zone the
contention Is that II became duty 10
maintain and operate II under all cir
cumstances The company contends how
ever. that to continue the two terminals
would put in Jeopardy the existence OF the
whole road. and that the existing provi-
sion for the Portsmouth passenger and
freight traffic was reasonably sufficient.
which the evidence strongly tends TO
maintain.
The power 10 judge OF wha, is neces-
Hary or reasonable is where the Legisla-
ture has not expressly interviewed i'm the
first instance in the corporation. The
duty required is not more than TO sup
ply the public wants. which are measur-
ed by the business actually done. or what
could be clearly shown would be done
with increased facilities. II is not only its
right but its duty 20 exercise q sound
discretion I'm the use OF its capital. and
not 10 exhaust II upon trains not re-
quired by public wants. The beginning