The Montgomery advertiser., 1906-03-11

Fuu Text of Opinion.
 The text of Judge Sayres decision The State. ex rel, V. L. & N. R. R. Co.
 In the City Court of Montgomery.
 The information in this case was framed in thel alternative It cnargeu that the defendant was exerclslhs tue franchise granted by the State to the South and North Alabama Railroad Company, or was exercising the fran chise of operating railroad without any warrant or authority of law whatever. When the de-
 nurrer to the information was
 heard, the argument for deten-
 dant, which was understood to be co-
 extensive with the deumrrer proceed
 ed upon the proposition that the sec
 ond alternative was bad. and there
 fore. that the demurrer to the infor-
 nation as a whole was well taken. on
 authority. and for reasons which were
 then considered satisfactory the de-
 murrer was overruIed. Now the re-
 spondent answers by way of fifteen separate pleas. adding facts from the
 first to the last in sort of crescendo scale. Whatever inconvenience or con
 fusion might be expected to arise out of this method of pleading on the part of relator and defendant. 1t conven-
 fently happens that the controversy has been narrowed to one inquiry:
 whether the defendant. corporation chartered under the laws of the state of Kentucky. is to be Justified In the exercise of a franchise granted by the State of Alabama to the South and North. Alabama Railroad Company.
 This one inquiry. however. is concern
 ed with quite number of facts which are progressively. and with some dlf-
 ferences stated in the series Of pleas
 cannot. in any space allowaoIe to
 me. state the differences between the
 several pleas. For the advice of coun-
 sel will indicate in a general way my
 views in respect to the leading facts
 upon which. in one place or another,
 and in one combination or another,
 the defendant relies for its justifica-
 tion.
 The charter of the Louisville and Nashville Railroad Company. granted
 by an act of the Legislature of the state of Kentucky. so far as disclosed
 by it's pleas in this cause. authorizes it "to operate. lease or purchase. upon such terms or in such manner as they | (its president, directors and stock hoIders) deem best. any railroad In any other State or States deemed nee essary for the protection of the inter ests of the stockholders" With this addition to the facts shown by the relator in his information. the defen- dant reproduces. with some changes which do not affect its meaning. the argument, made on the hearing of the demurrer to the information, to the effect that the operation of railroad is a matter of common right in Ala bama:' that by the general law ot comity between the States foreign corporation may exercise in this State any of it's charter powers the exercise conflict with tho laws or public policy of this State. 1t seems however. to be admitted that it would be against public policy for a foreign corporation to do .any acts except such as citizens generally have the right to do without franchise de- lived from general or special legisla- tive grant. And. the argument pro- ceeds, the Louisville and Nashville Company having in its charter power to operate railroads in Alabama, It has, under the general law of comity. power to operate a railroad between any two points in Alabama, and 1t does not concern the State whether the road
 1t operates was built under the char
 ter of the South and North Company or otherwise. If 1t has a
 franchise to operate a railroad in Alabama. it's right to operate a particular road--or all the roads. It may be added-in this State cannot be l tested by writ of quo warranto The l doubtful step in this argument rests | to operate a railroad in Alabama IS a | right common to all her citizens To
 support 1t reference IS made to s7E the | which was as follows: That all rail- | roads and canals shall be highways, | and all railway and canal companies l shall be common carriers. Any asso- | citation or corporation organized for | the. purpose shall have the right to | construct and operate railway De-
 tween any points s, in .h1T n stayG wftb ana railo l roads of other States. Art. 14 Sec; Zl' l and similar pEovsion in the Con, ] stitution of 19O1'Msec; 242: It IS shi9 shi1 l constitutional provision Is confined 10 ! associations or corporations the legis-
 lative history of the State demon | strates public policy to recognize the
 right of individuals whether associated ! or not. to operate railroads without
 special grant from the legislature ! The fact is noted that in comparative l lV recent years many short lines of | railroad have been constructed ana
 operated as incidental aids to milling roads were, under the Constitution,
 necessarily common carriers; and some | nine or ten acts of the legislature ., 1 passed in the years from lSS9 10 lSse; | penalties are imposed upon persons or l corporations operating railroads Tn l this State: and tt IS Salq mat, SIHCe m Individuals have ever been special i iv authorized by lesisla tion to operate l railroads the aforementioned legls- i lation necessarily proceeds upon the | assumption of a common right in the citizens of the State to operate rail-
 Bnt. if the policy of the State in | inc respect In question, in the absence of express declaration, must be de- i termincd from a consideration Of the l subiect matter involved and those | constitutional and statutory express ! einns which. while not expressly to lne
 ,oint afford inferences as to that pol { it,--as of course it must-I think the
 rignt Of the evidence is against the defsudonts proposition. A franchise
 is a special privilege conferred by gov l rrnmert upon indivIGuats, and which | does not belong to the citizens CT the | Connfrv generally, of common right l S Am X Eng Encyc. 5S5. eorpora- | ton Is itself a franchise pFlonglng 10 | inc members of the corporation; and a | corporat tion. being hself T franenlse. may hold other franchises, as rights 1 and franchises of the corporatlon. , 1 Pierce V Emery, 32 N. H. 507, Tt Is ] a conceded power or duty Of govern ment to provide and mainIaln high- ways, bridges and ferries When these l duties are not directly assumed by the l government, they may be deleSate{l. | -s Am. & Eng. EncYC. 5S6, such prlV- | ileges are common forms of modern | franchises."-Tb. The enormous eco- | nomical and social importance of rail- | roads is and has been well understood, l To secure their construction the State