The Montgomery advertiser., 1906-03-11

poration have been compiled with. In respect of the manner In which fhe prescriptiva right to be corporation Us pleaded at common law, we find It ruled in an old case that, in q proceed ing by quo warantO against persons claiming to exercise corporate Tram corporation by prescription, they must set up that they are a corporation known by such name time out of mind. Therefore, in case where it appeared that no record of the organization of a school district could be found, and that. the trustees and their pr,esdeeessSSrs by the sSSSs sSa,s functions as trustees of the village district during forty years, without cb- jection, the due incorporation and or sumed" Thonp. Corp. 4s9, "And when 1t is shown that the fran. chise which is assailed has been ex- ercised from period so remote that It's foundations cannot be distinctly traced, or it's origin definitely assign. ed. the exercise of the franchise will
 O5 Ot Ps S. if bS hoe bS Erpaaans the information, originate proceedings for questioning. It's validity. -digh Extra. Rom SSI; In In MassachusettIsS; sso6 se,,IS be found of q parish, which had e1- isted more than forty years, evidence was admitted, to prove It's incorpoTa- ton by reputation."--Aug. & A. ID. So clearly. as 1t seems to me, prescrip7 ton title to franchise Is based upon the presumption of right-dolng con nected with the absence of evidence to the contrary: and it seems clear also that the doctrine cannot help the de- fendant. The defendant Is foreign corporation. The right to operate q railroad in Alabama is not a matter of common right, but depends necessarily upon grant of general or special leg is,@I,sS by referring I1 to Il" its contract or ar- rangement with the South and North Company. The validity of the con tract or arrangement depends upon the special charter of the south and North Company. There have been no gem erai laws authorizing such contract. There is no lack of evidence; The ori- ready traced; it's foundation Is definite- ly assigned. The record is completes and on the face of it the defendant and franchise which IE now claims. And defendant has known this; for corporations, as well as individuals, are presumed to know the law Its lack of power Is clear. and there is no presumption of right-doing to be in- dulged in its favor. And for this req that the State cannot be estopped by matter in pals, no estoppel can arise in favor of the defendant out of the facts which are pleaded.
 Finally, 1t lH alleged that tho relator in filing the information in this case has the ulterior purpose to advance as a stockholder of the South and North Company, has on foot against this defendant, and that this and the other facts already considered In re- which the court ought to exercise a discretion in favor of the defendant and put an end to the prosecution O. ceded s that ther5 is a discretion in cases where the information Is brought to oust from the usurpation of a fran z v4Ta fsa1r I An 4laV think the question can possibly be raised on a demurrer to pleas on an- swer The exercise of discretion necessarily implies that the prosecu- Iion is to he determined, not according to the rules of law, but otherwise and according to some standard not quite ter the filing of the information, for 1t was said in The State ex rel. Sanche Y. Webb. 97 Ala. III. that tho statute. to the effect thPt any person who de- do so without consulting the judge. and getting his direction, is so plain CT Necessarily also. discretion is to be exercised. not on mere allegation and partial view of the case, but on proof and on consideration of the en- tire case. On demurrer, which has to do with allegation only. the relator is entitled to have his case ruled accord ing to. strict legal right So I think ing whether there is a discretion In this case, or whether it ought to be exercised on behalf of the defendant
 Approaching the possible great im- portance of the interests involved in this case, though well aware that any ruling here is merely preliminary, I am constrained to express my opinion, reached after some care. that, as for the facts now alleged in its several pleas. the Louisville and Nashville Company has shown no title to the franchise of operating the south and North Company's railroad, and to ruis ancnrdlnElY.