The Montgomery advertiser., 1906-03-11

thorized by 1t to build them. it's power of eminent domain and of taxation.
 Blackstone's definition of q corpora
 person created for preserving in per
 which, being conferred on atural per
 sons only, would fail in the process
 tion IS proper agency for the opera
 tlon of a railroad. Having these things
 nm n mind the makers o of the Constitu-
 tion. organized for the pur-
 pose, the right to construct and oper
 state; and they adopted a definition Of
 corporation" which would seem to
 have rendered the use of the word as
 sociation,'' at the only place where 1t is
 used in connection with railroads. with
 out particular meaning, for they said:
 The term corporation shall
 be construed to include all joint stock
 companies. and all associations having
 porations, not possessed by individu
 als or partnershiSs." But when con-
 ferring the power to- construct and
 maintain telegraph and telephone lines. also in a sense common carriers. they
 said: Any association or corporation
 organized for the purpose, or any in-
 dlvidual." When the section of the
 Constitution fin reference to railroads,
 dpONS. came tO OC Ie-tudCNeu
 in the Constitution of 1901 there was
 an exception of railroads and canals
 constructed and used exclusively for
 private purposes, so that they are no longer declared to be highways. Under
 these circumstances the omission of the
 words "or any individual or some
 equivalent, from Section PAP seems to
 be of itself significant enough to con
 clude the question. Moreover, fl strikes
 me that the use of the word person"
 in the several statutes referred to as
 indicating a public policy to make the operation of a railroad common right. was intended to impose on the
 operating officers of railroad as in-
 dividuals the same penalties imposed
 upon the corporation itself, the duties of which are necessarily performed or this purpose they operate railroads" though as individuals and for them selves they may have no right to do so. The South and North Alabama Rail-
 road does not appear to be constructed and used for private purposes. while 1t does appea: that the Louisville and Nashville is exercising the franchise of | operating the South and North and col | lecting tolls for the same. So I think | the defendant cannot be Justified on l any theory of common right.
 The defendant further says by way | of justification that it is operating the | railroad constructed under the charter I of the South and North Company in | accordance with the provisions of contract between the two corporations. l The particulars of the contract are not | stated. the theory of this withholding | of specific statement being that if they are competent to make q contract to | the end that one may exercise the fran | ehise of the other. the fact that they | have made such a contract and are | acting under color of 1t, Is as much as | the State Is concerned to know, since | the charge Is not misuse but usurpa- | tion; all else being question between | the corporations themselves as between | them and their respective stockholders. | whether the Louisville and Nashville | are competent to make a contract by which the former may exercise lawful | ly the franchises of the latter must de- 1 pend upon a construction of their char | fer movers The charter of the Lou | fsvilie and Nashville Company. to re- peat, authorizes 1t ito operate. lease or