The Montgomery advertiser., 1905-11-14
| GRAY GETS | A DECISION Judge Sayre OVerruleS
 1. & N DemurrerS. SOUTH AND NORTH CASE Minority Stockholder of Rail. road Scores Point. Seeks ts Dust Great system from Con-
 troI of Line BetwcensIontsomery
 and Deeatur-Other Court

1 Judge A. D. Sayre, presiding over the City Court of Montgomery yesterday rendered decision overruling the de. ] murrers of the Louisville and Nashville Railroad Company in the quo warranto proceedings instituted by the State of Alabama ex rel Henry B. Gray as a minority stockholder of the South and North Railroad Company.
 In overuling the demurrers Judge Sayre gives the defendant thirty days | to file new ones.
 These proceedings are IT. connection with the general litigation of MT. Gray and others against the Louisville and Nashville to prevent that company from absorbing, or operating the South and North Railroad of Alabama of which the Louisville and Nashville owns 90 per cent of the stock.
 The quo warranto proceedings are to compel the Louisville and Nashville to show by what authority 1t is operating railroad and collecting tolls over the lines of the South and North between Montgomery and Decatur. The de- murrers to MT. Gray's petition held that the allegations were not sufficient. Judge Sayres opinion was as follows:
 Opinion of JudEe Sayre. ''The State ex rel Henry B. Gray vs. Louisville and Nashville Railroad Com pany.
 '"rhe petition alleges in the alterna- tive that CD the Louisville and Nash ville' Railroad Company. a Kentucky corporation, lis exercising the franchise of the South and North Alabama Rail- road Company, an Alabama corporation to operate a railroad between Mont gomery and Decatur in this State. or else t2) 1t Is exercising a franchise | to operate a railroad and collect tolls l between the points named, and in either case without any warrant or authority of law whatever.
 The prayer is, not that there be de- clared a forfeiture of its charter--for l that could not be decreed in Alabama, seeing that the defendant is a foreign corporation-but that 1t be busted of | the particular franchise In question. It | is properly conceded by the petitioner ! that if the petition would be insuf- | ficient if based exclusively upon either of these alternatives. then 1t is wholly insufficient for lack of the certainty 1 required by the rules of pleading. The demurrer to the petition rests exclusively upon the alleged insufiicien- | cy of the second alternative and the argument for it proceeds upon the | proposition that the operation of a railroad between Montgomery and De- catur without any special legislative grant is not the exercise of such a franchise as may be busted under a writ of quo warranto.
 RiGhts of Corporation.
 "As one step in its argument the defendant contends that while the State has never by direct statutory enactment so declared, yet the passage of numer- ous laws, cited by defendant. which undertake to impose duties and penal ties and generally to regulate persons, as well as corporations, who may own or operate railroads in the State must be taken to demonstrate a settled policy of the State that private in- dividuals at their mere will and pleas ure, and without special legislative grant. may exercise the privilege of operating railroads for tolls in Ala bama. Without conceding this propos- sition. nor venturing any positive nega- tion of it, because to do the latter would involve necessarily some un- favorable disposition of that series of enactments cited by the defendant and which do seem to recognize such common right as is contended for, I have not been able to understand how its concession would be of advantage to the defendant. For whatever may be the common rights of private individ- uals in respect to the operation of rail- roads and the collection of tolls, cor porations have neither that nor any other common rights in Alabama except the right to sue and be sued in like cases as natural persons. That Is made so by the constitution. The nature of a corporation is such that 1t Is capable of exerting it's faculties after the manner authorized in its charter only, and hence It's every act is done fin pursuance of its franchise or is an act of usurpation. And whatever is true of domestic corporations in ,.k l1x corporations. for otherwise foreign cor porations would have privileges in Ala bama not accorded to the corporations Of her own creation. That would not be comity but prodigality.
 Authority of Company.
 50 then. conceding to the defendant the full benefit of the law of comity, and every advantage to be derived from the policy of the State to permit foreign railroad corporations to own and oper- ate railroads in this State, it seems to me that the real question in this case, so far as the demurrer is concerned, Is whether anything in the petition must be taken as an admission that the Kentucky charter of the defendant con- fers upon 1t the general authority to operate railroads and collect tolls out side of the State of Kentucky.
 As I construe the petition there is no admission in it. nor any failure to state any fact which must be taken as an admission. that the defendant has any particular power whatever. The amendment is that the Louisville and Nashville Railroad Company is a foreign corporation operating a rail- road and collecting tolls for the same between Montgomery and Decatur in Alabama without any warrent or au- thority of law of Alabama and without any warrant or any authority of law whatever. I construe this to mean that the defendant, being a corporation. Is exercising a franchise to which 1t has no grant. This certainly makes a proper case for the interference of the State by it's writ of quo warranto unless it be objectionable by reason of the generality of avArment. But that objection is concluded by the decision of the Supreme Court of Alabama in the case of Uniontcwn Dispensary vs State