The Montgomery advertiser., 1906-03-11
JUDGE SAYRE DECIDES
 THE |. & MCKAY CASE

(Continued from Page Fivc.)
 made in argument. that the State has ever, contemporaneously or otherwise, by Legislative or other responsible of- ffcial action, acquiesced in any con- struction of the charter of the South and North Company which would au- franchise to operate the railroad con- structed under it between Montgomery and Decatur except such things as are imputed to the State as laches But of that later I observe in this connec- ton that the States complaint In this case Is not against the construction or the road, but its operation. by the Lou isville and Nashville Railroad Com
 In its last plea the Louisville and Nashville Railroad Company makes It to appear that 1t owns t great great ms19bpe ns tbe South and North Company, and by the voting power of this stock has con trolied the election of the directors and managing officers of the latter company, such officers being at the same time officers of the former com pany, and so, with the knowledge and and North Company and the acquies- cence of a lnatority of it's stock hold CTS is operating its railroad in the name of the Louisville and Nashville Company by agents and servants em- ployed in its name. and in so operating 1t, all expenses incurred and earnings made are incurred and made for the account of the same are monthly ana annually rendered to the directors and stockholders of the latter company, and have been and are approved by them, and the contention Is that there Is no law prohibiting the South and North Company from employing any fit person-natural or artificial, pro- vided the artificial person has the pow CT to perform the duties-to employ necessary agents and superintend the operation of the road But the Louis vile and Nashville, being itself a cor poration, In fact, as appears from the plea, employs the natural agents nec- essary to operate the road In its own name. and in It's own name makes con and passengers. The agents who real ly operate the road are the. agents Of the Louisville and Nashville. not of South and North: while the @ real cor cised by the former company. A corporation must carry on It's bnsi- ness by It's own agents. and not through the agency of another corporation.
 1 Morawetz Camp. 431: NJ & c. R. R, V. Woods, SS Ala. 63S The arrangement here Is not authorized by the charter of the South and North, and Is against
 The defendant further shows that the South and North Railroad. the Nashville and Decatur Railroad, and the Mobile and Montgomery Railroad, the last two being owned and operated by the Louisville and Nashville Com, pany, form a continuous or connected line. and such being the case. defend, ant Is operating the South and North by virtue of a contract between them, entered into by the directors Of the South and North with the consent and annually renewed approval of major, ity in Interest of It's stockholders; and it Is afgued that this arrangement Is to be justified by S the PrSViiSS'oms idS ars H1 fa the effect that when two roads are so related as these are the owning com pany of one may lease or. purchase the other, or the two companies may enter into an arrangement for their common benefit, consistent with, and cal culated to promote the objects ,S1,s no such lease. purchase. or arr engagement shall be perfected, until
 meeting of stockholders of each such corporation has been called by the d. and in such manner aB they shall des- ignate; and the holders of majority in value of the stock of such corpo- ration. represented at such meeting, in person or by proxy. and voting thereat. shall have assented thereto. The pleas fail to alleRe the assent or North Company given in the manner required hy the statute. The burden resting upon the defendant to make special. distinct, and particular aver required to prove nothing (High Extra: Rem. 667 a, 7l6), 1t must be assumed that assent was. not given by stock holders as required by statute. The demurrer takes the point The defen- dant, relying upon the authority of Nelson V Hubbard, 96 Ala. 23S; Bar rett V. Pollak St Co.,. 10S Ala S96; and 1l2 Ala. 145. contends that the stat utOry provisions referred to were in- tended for tho benefit and protection Of stockholders only and stockholders only may be heard to complaln of the failure to conform 10 them. l think perhaps 1t might be held, by reason Of the fact that the South and North Company was not chartered merely to engage In a business enterprise for the private interests of its stockhold- CTS, but to operate public highway as a common carrier. a business in which the State had peculiar interest and which could not be carried on State, reading into it's charter the re- quirements of section 1d70 in relation to the assent of stockholders, passed nearly forty years ago and before the direct proceedings, to require the cor poration to live fully up to the law or It's creation, whether made for one pur- pose or another. In Arlington Sa-- Vannah & Western Railroad CO. Sb Ala. 43S, 1t was said by Judge Stone, of another section of the Code in line with this and almost identical in Ian guage; "TRe statute covers y the whoie I,os statute. It interdicts the exercise of such power in any other manner than on the terms therein prescribed. Not by positive assertion, but bV neces- limits a thing to be done in a partic- ular way. 1t includes in Itself a neg ative. and the negative in that 1t shall not be done otherwise. The lim- prescrlbes the particular manner in