COLORADO E. BY. CO. fl. UNION PAO;RY. CO.
293
"Where, by legislative enactment, authority has been given to a munici. pality, or to its officers, to issue bonds for a proPElr purpose, but only on some condition precedent, such as the presentation of a petition bearing the signatures of two-thirds of the legal voters of said municipality, and where it is obvious from the enactment that the officers of the municipality have been investeq with the power to decide whether that condition has Leen complied with, their recital and certificate in the bonds issued by them, and hdd by St bortajide purchaser, is conclusive of the fact, and binding upon the municipality." Under the settled doctrine of the decided cases, it seems clear that the plaintIff, when he purchased the bonds in question, with the therein found, had a right to assume that the same were issued under the provision of the act of 1877, as the same were in force at the of the issuance of the bonds, and that all the precedent Rteps required to be taken by the statute, as then in force, to authorize the actual issuance and delivery of the bonds, had been fully complied with; and that the plaintiff, having purchased. the bonds for full value, in good faith, relying .upon the assumptions which the law authorized him to deduce from the recitals made on behalf of the municipality by its proper cials, is entitled to estop the defendant from pleading as a defense thaf such recitals are not true as a matter of fact. It follows that plaintiff is entitled to judgment for the amount due on the coupons declfj,red on, with interest and costs.
COMRADO
E. Ry.
Co.
v.
UNION PAC.
Ry.
(Circuit Court, D. Colorado. Februarv 17.1890.)
1.
RAILROAD COMPANIES-FRANCHISES-EMINENT DOMAIN.
A .railroa!i company incorporated undeI"'a statnte making it a common carrier is not rendered a'private enterprise, so'as to deprive it of tbe l'ight of eminent domain, by tbe fact tbat it is poorly constructed, and terminates at a coal-milie belonging to the corporatIon, when it appears that it :larries tbe mails, passengers, .Rnd freight, runs regular trains, and has expended about $280,000 in building 'its road, and aoquiring its right of way. : Where land, sought to be condemned by a railroad company lies on the dire<,'t line between the end of its road, as built, and the at which it aims, fact that it could reach such terminus, by a circuitous route, without crossing such land, does not show that the land is not necessary for the construction of the road, Land which is owned by a railroad company, and which it expects at some future time to use for railroad purposes, but which it has held for five years without using it in any way, is subject,to condemnation for the right of way of another company. " A railroad company whose charter gives it the right to build its road "from" a eel', tain city is not barred from making tbe Union depot in such city its terminus by the fact tbat it began to construct its road from a point in the outskirts of the city, and for some ,time ran trains from such point, when it appears the companv never made any permanent improvements at such point, and that from the first'It made efforts to ,extend its 'line to the Union depot. ... '
2.
SAME.
8.
4.
SAME-TERl\IINI.
At Law.
,": FEDERAli.REb'ORTEB,
vot 41. " )
, ' ,'Rog8r8: &'Oathbcrt, fot · ,11 :1;
plaiRtitf.: r ,
;Tellir ,&J' C>tiiho.od, for 'defeP-dant. ",I: ;co,' , , ; ' ' 'C" ,:
PHams, J. This isa prooeedillgfor <;:ondemnation. The petitioner ,c1aimsio,be a railroad corporation organized under the la\vs of the state of Colorado. ,The land sought to be condemned belongs to the defendant, it railroad corporation, 11lld' comprises 7.63 acre's lying within the corporate limits of the city of-Denver, and on the line of petitioner's surveyfrQ:m the city limits'tO',the Union depot in said 'city. The land ,is claimed to'be a,necessitr to, petitioner for freight and storage buildings, turri-outs, engine houses, and the like. Its right to main,tain this proceeding ,is assailed. vigorollsly by defendant, on various the following: That the petitioner grounds, principal ill nD.t SUCh, Ii railroad as 'in contemplation of law would entitle it to exercise' the 'right of eminent domain; that the use it see,ks to apply the land to private than publiq; ,that the land is not of such neces'sity to 'to justify the, taking fr6rn'defendant; that this land had already been applied by the defendant to its own use as a ptl-blic railroad. or that it is. of such eminent necessity tei prospective business as ought to restrain, the court from wresting it from defendant for the use of another conipany; and, finally, that the petitioner had already located its road, and established its terminus, at the city of Denver, and has therefore exhausted its power for a further extension, or the establishment of another terminus at the Union depot, as sought by this proceeding. Ordinarily, in a condemnation proceeding, the rule of law is that the petitioner preseQts a prima facie. right by showing, by its charter, that it is a railroad Ciorpotation under grant from the sovereign power, a user under its francNse, and a necessity for the land sought to be taken fOI its use. The petitioner was incorporated in January, 1886, under the general corporation law of the state. It was incorporated under the name and style of "The Denver Railroad & Land Company." The second article thereof declares: "Its objec'ts I,\re to locate, construct, and operate a railroad, and the necessary line ot teleKraph connections therewith, from the city of Denver. in the county of Arapahoe, and state of Colorado, in an easterly direction to Sand creek, and elseWhere, with the necessary branches from its main line to its other all in said county of Arapahoe; to acquire, by gift. grant, devise, or otherwise, lands and other property; and to do a general railroad business under the laws of
its
In July,1886, its articles werearnended, conformably to the statute, by striking out the words "and elsewhere" in the above-quoted article, and inserting, in lieu thereof, the words "and from thence to a point on coal-lands of the company in township 3 S., of range 65 W." On the 14th day of January, 1887, the articles were further amended by of the company to that of "The Denver Railroad, Larid &Ooal Company." And finally, on June 8, 1888, the articles were again amended by changing the name to that of "The Colorado Eastern , Railway Company." By the second article of this amendment-
COLORADO E. BY. CO. tJ. UNION PAC-BY. CO.
295
·'Its objects are to locate, construct, and operate a railroacl, and the necessary line of telegraph in connection therewith,. from the Union depot, in the city of Denver, county of Arapahoe, and state of Colorado, in an easterly direction, over, through, across, and upon the property, occnpied or unoccupied, of individuals I.Lnd corporations in the counties of Arapahoe and Elbert, in the said state of Colorado, to a point on the eastern boundaty line. of the said state of Colorado, to a point at or near the point where the south fork of the Reptlblicanriver -crosses said state line; and to locate, construct, operate. and maintain the said line of railway, and the said line of telegraph in connection therewith, from the said city of Denver, by the most eligible and practicable route, through the said countIes of Arapahoe and Elbert to the eastern bonndary line of the state of Colorado, with such branches, side tracks, switches, turn-outs, yards, stations, and other railway facilities and conveniences aamay be necessary or desirable; and to acquire, by gift, grant. devise, purchase, or otherwise. lands:and other prop'ilrty; and to do a general railroad business under the laws of the state of Colorado." As the last amended charter is objected toby the defendant on the ground that it was made since the filing of the original petition herein, we will first consider the rights'of the as they existed under the. inaJ charter and the first and second amendments. 1. The character of this corporation is first to be determined from. the language of. its charter. It is declared to be a railroad, to be operated as sllchbetMlen given points, with necessary lines of telegraphs, and with power to construct branches. As incident to its apparent character, the generahtatute law of the state imposed upon it the burden and duty ofacting as'a common carrier of freight and passengers. The question, therefore, arises, is there anything further expressed on the face of the grant so quaiifying and limiting the general expressed power of the pany as to >indicate that its1real object was to promote merely a private enterprise, disassociated from the public interest? Its further declared object is to extend its road in an easterly direction to Sand creek, and from thence to a point on the coal-lands of the company in township 3, range 65,with the necessary branches from its main line to its other lands in said county. Does the fact that the grant authorizing the com" pany to extend its road from the eastern designated point of Sand creek to its coal-lands, with branches to its other lands, ex tri termini, destroy or take away its character as a public railroad corporation? I am unable to discover. sufficient reason or authority for such conclusion. In the first place, iithis extension can be deemed a special power, it in no sense is inconsistent with, or contradictory of, the general terms ofthegrant, so that they may not stand together; and, the powerto build to the coal or other lands of the petitioner, without more, should, in favor of the legality of the franchise, be considered as merely designating the terminus of the eastern extension of the road, or the termini of. its branches, and not as a palpable indication that the real motive ofits promoters was to develop their coal fields, and conduct a private traffic in their products. If such object in fact existed, it was in pai$, and must be found in evidence dehors the record. In support of defendant's contention that this road did not rise to the dignity of a public such as the legislature intended to
"FEDERAL REPORTER, V{)l.
41.
dothe with the power'!l:O exercise the' right ,of eminent domain,' 'its ,evito show that this rand was in a very unsubstantill,l D;:nd'prhnitive faAhion; the trackvvas a three-foot gauge, constructed put ofindifferent rails' arid ties, not adapted to the support of heavy freight trains. nor secure for the rapid carriage of passengers; that the rolling stock thereon consisted of very small-sized engines, and the freightcars ·weresll1all,and adnpterl' mainly to the transportation of coal, and that the of speed attaltlable was not over six or eight miles an hour; that the erecte<iat its termiriusat Denver col1sisted of a frame ofsmall capacity, for a passenger depot, and its other ingswereprincipa1Jy sheds used for and that its business for: the first year consisted almost entirely in carrying coal from its mines to Den'\Ter; and that its capital stock,rtominally of $500,000', was rep:resented in the proportion of four-fifths by its lands. On the other hand, evidence tends to show that the petitioner had b,uilt this tMd;·beginning in 1886, from a point known as "Twinings,".in the eastern:'outllkfrts. of the city of Denver, tG Sand creek, a distance of about 8 miles, and on to its present terminus, at a station named Scran. tori,makinga distance'iuall of about 17 miles, with several intermediate stations established along its linej that its construction cost about $80,000; that the country. through whichit ran was but sparsely settled, and at first there was but little of freight, and few passengers, carried over its line, but that the population 'had increased,as also the amonnt of freightage from outside sources; that the carrying of coal from its mines had long ceased,e:ll:cept for supplying its engines, and that since that time its business had consisted almost entirely in the,transportation of freight for the public; that the smaller engines at first employ'edupon its road had been exchanged for one or more of larger apacity,obta;ined from the Rio Grande Railroad. With the exception ()f about two' days, occasioned by the washing away of its bridge '6ver Sand creek; its trains from the first,np to this time, have run daily, carrying the United States mails, and passengers from the aifferent stations, to and from Denver, and all the freight tendered it from every sptlrce, of the products of husbandry produced by the limited number of farmers, and carrying from· Denver lumber for buildings and fencing, and such other supplies as are· ordinarily bought by such people in the markets. It'also had and published the customary time-card; and, furthermore, it had from the beginning been its purpose to extend its road further east, and that it had taken some preliminary steps looking to such projection; and also that it had been its object from the outset to reach the Union depot, in Denver, and to this end it had expended, as claimed by its principal officer, some $200,000 in procuring a right of way through' the city. There was some evidence on the one part tendingto show that agents of the petitioner, in obtaining the right of way from, property holders along the line of this: road east of Denver, represented to them that this road was .only designed as a way for getting to the edal-nrines aria transporting couljand, on the other hand, there was evidence that such agents represented to parties that it would. afford Ja..
COLORADOE. RY. CO. t1. UNION PAC. RY. CO.
297
cilities for the people along this line to reach the Union depot in DenveI with their travel and freights. I attach little importance, in the consideration of this case, to this latter incident. On the state of facts developed, a quo warranto, at the relation of the not lie against this road as for abuse or misapplication o,f state, its charter. Equally should. such facts constitute such user of a railroaq, conpled with its apparent character upon the face of its charter, as to bring it within the rule of prima facie right to condemn land as for a public use. Its beginning may have been small; but, if the right toexercise ,the power of eminent domain should have been denied in the early history of railroads in this country because of their small beginnings, it is not too much to say that some of the great, mammoth railroad enterprises which have developed and strengthened the COqlmerce and wealth of the country would have perished in their infancy. In' Chicago &:N. W. R. 00. v. Chicago&: E.R. 00., 112 TIL 601, the court s a y : ' "The company, as we have, just seen; was organized under a valid charter, and is shown to have done corporate acts under it. That was sufficient tif establisll a prima facie right to take the property in question; ... ... ... and this pl'itpa fa!-"le right cal) not b!lsuccessfully assailed in. a collateral, , is sought to here." And in the later case of Ward v. Railroad Co., 119 Dl. 287,10 N. E. Rep. 865, the chief justice says: "There is some proof tbatthe petitioner is a corporation defacto; and that is all thelaw reqUires in this class of cases. There is evidence, althongh it may sUght, of corporate acts done by petitioner. It ,appears that an engineer hall been appointed, thEl Une olthe proposed road has been located, ard otbel" liteps taken towards tQe building of the road. ... ... ... These are COl;Parate acts, and tend to show petitioner is a' corporation 'de facto; " 'It does seem to me the right of eminent domain not eBsarily be denied to a railroad corporation because of the filet that the primary and chief inducement moving its promoters was to de"'elopprivate coal-mines, and bring their products to "The truecritenon by which to judge of the character of the use is whether, the publip may enjoy it by right, or only by permission, and not towholU the t;ax or toll for supporting them is pa.id." Mills, Em. Dom. § 14. And Lewis, Em. Dom. §§ 160, 161, asserts that: ' "In determining whether the use in such case is public or not. it is animmaterial consideration that the control of the propettyis vested in persons, who are actuated solely by motives of privategain. ... ... '" ·The inqUirymust necessarily be, what are the objects to be accomplished? lWt who are the instruments for attaining them? ' ... ...,.... · The pUblic use quired need not be the use or benefit of the whole public or state. or any large PQrtipn of it. It may be for the inhabitants of a small or restricted locality. but the uSEkand benefit must be in common, not to particular individUals or estates.'" Or, as 1 Wood, Ry. !4w, § 226, puts it: , "The question is whether itisofso much benefit or advantage to til. comm,unity, either directly or 'indirectly, that it cannot be said toue whollypriivate operation." :.
V;'M088, 23 'Cal. 324; 'the court say: :!\It'.is'rirged that ,the plaintiffs are constructing a railroad trom a coal.mine in the mountains, through a desolate:t;egion:"to n;tvigable waters, to enable it to; coal. to ,8?d that, tpis is a mere private lllle, and rIght to the prOpl)rty of others to its, wlthtbeit'cf)tlsetit. '" .· lie' The plailltitfs','In com mop with other railroad ,Mtripaniesorganized under this act,are bound by these provisions which 'lilake,Jt'ObIig"dtoryupon them to act:aScommbn carriel'$, ... lie ... The fact , t.hllir ,road does not connect points of present commercial importance canright/! ,of the plaintiffs. ,R,ailroads often make commercial and cheap supply of coal "'.'" ... is' one ,of t'he 'great neceS$ities of the state',and a matter in' which' the whole 'state iiffJll(eteste:d." ' , '! ,li" , ' , . :' , JI _l'l! ;:.: ' · ': ' ,
i
{.o'.,'
"
_ ·
prog:t;ess of as wellas the maintenl»lpe,c;>f supply, may be so dependent _ upon a :1llrge llupplyofcQalforJuel ,as, t().render railroads'Jor its trans.of ppplic,n,e(lesflity.. It fact be <lifficultltoiCQllcei:ve ohn object use·. It;ia,aa much so as \the fteightage ;of breadstUffs, meatsjand'otharnecel'lsary., supplies forh uin: OUr large :dUes) .or' COttl pact comth unities, 'dependent upon exterior sources for their pro(JUctroli:' , It' wonld De no answer to Jb(lit olJl.\lXl't'o bfli say, for instance1 that.a community like Denver was not wholly dependent uponthi7sf()ad {or its, 8Up:ply r.ailroads, which may bring, such supply. . only' the life' of trade,' (or at least is yet Bupposedto be the: OOtnmon 'people;) :but thenniltiplication of mid the to'i1iQ-rket,'te'bd toC'heapyri thepecessaries pf 'liFe :toe an4'legitimate sense they should retain character as public . Government itself is maintAine<i! 'to promote .the'general. the of eminent doin in the light of adjudi.(mtiOD8j' bertainlyit corrieS bOth within the'letter and the spirit of a pub'!icrailroad<corporatioriwhere such:ariobject, as above is 'coupled 'the obligation, affixed by:thestatute'tothe franchise" to beeomealst> 8 common carrier 'of 'passengers and :freight,lan6 the corporation actualiy performs such'lluty to the The evidence in this case shows that'for'th'e,greater'perlod, and iIittie ,latter yeAhJ;' ofthe exi$tence and operation 'Of this road, its business has 'been (ctlnflinbtl '! principally to' of passengers and' general What is J., U<>., aIlke proceed,mg. ma mlpejlj;l;qultl;l pertment: ,.'" does ,not lose thechara<\ter of a pnblicu'se because of the -.fact.Wllt tJhe prQjected,tailhmd: is 'Dot a: 'thotoughfare, aod that its USe maybe limited by circumstances to a comparatively small part of the public.. Every one of the public having OCC8!!ipnt9, or machinery for mining purposes into, 'or to' oJ)t'Alnores from; the several mi,ning, -tmetsatljltcept 'to ,tile: location of this road..:'may use this railroadfbr that pur. reqUire tbe,eompl)hytoserve him in that respect; and that is the test which determines whether the use: iapublic. NOl' will any !.
COLORAnO'
&
KY.. CO·
.,.tiit:to'N' PAC; ;ay. co.
motive of personal gain which may have intIuenced' the projectors in taking the work take trom.· it its public character. * * A. Particnlar improvement, palpably for .private advantage only, will.not,becomea pllblic. use because of the theoretical rIght of the public to USEl it. Bllt where the franchise is in its nature a public franchise, as the transportation' of freight is, and the object promoted is one that concerns the (itiblic interests, as the development of the mining resources of a state does, the 'improvement is essentiallya pUblic benefit and advantage; and if there be no restriction on the rigbtof the pllblic to use it. and no inahility to useit, except such a8 ariSes from the circumstances. the court, in determining whether the Buch a public use as that the right of condemnation shall ex.tend to it, will not scan closely the number of individuals itnmediately prof-' ited by it. Indeed, it Would not be possible to indicate the number of per.. sons,or deline the area of the limits, to which the benefit of Buch an improvement may extend." 2. '1s the land sought to be condemned necessary to the petitioner? No serious question is made in argument but that the quantity afland, and its loCli.l fitness, are useful, and eminently suited to the purposes of the petitioner for necessary store-houses, switches,and turn-outs, andthe like:' In fact, it is the only piece of ground lying between the present eastern terminus of the road, at the outskirts of the city, and its' objective point, the Union depot, available for, or a.daptable to,such lIse, without entirely changing the surveyed line, .and undertaking tl)' accomplish its destination by a circuitous route to the north of the city It is insisted, however, by defendant that it is feasible and practicable for petitioner to reach the Union depot by such detour, and thereby leave 'ground in controversy to defendant. The rule of law, rily, is' that II the selection of the land to be taken rests in the discretion of the corporation." Wood, Ry. Law, 660. Chief Justice in Railroad 00. v. Dunbar, 100m. 112, says: "If there be no other limitation of its power by their statutes, It is obvious,such a railroad company may, as agener81 rule, select its own route, fix its terminal poInts, and lay out its road." In the very nature of things, a large discretion must be acc()rded to the engineer and agents of a railroad company in determining the route to betaken, and where its side tracks, turn-outs,switches, and depot' houses'shllH be located, with respect to convenience and successful ation, subject, as a matter of course, to judicial supervision toconfiue such discretion within proper limits. Railroad 00. v. [)ix, 109 Ill. 244; JI"brney v. Railroad 00.,36 N. W. Rep. 806, 33 Amer. & Eng. R. Cas. 162, and note; Mobile <to G. R. 00. v. Alabama M. R. Co., 6 Southi· Rep.' 404. Petitioner's engineer testified to the nedessity of this route and selection. From the map in evidence beforo the court, from the topography Mthe country, and the character of the improvements where this road would have to run to otherwise reach the depot, it does not appear to the court to be within a sound judicial discretion' to disregard the judgment of the engineer and officers in selecting ,the routa and.ground in questiort., .The route is the shortest, and mostnatural. ," [Hollows the lowland near the bed. of the Platte river, runs1>arallel;!With defeudant's road,between it and the river, and e far enough
*..
.nDERAJ.. REPORTER;
vol. 41.
from ,defendant's road not to interfere therewith, and overground little deS'irable' or available for other business use· or habitation. 'Besides wHiCh" as appears from the petitioner has expended large sums of money in securing the. right of way on this survey, and has in successful progress other proceedings to complete this mode of access to the Union depot. It would therefore be harsh for the court to forceitto abandon and sacrifice all it has struggled for and paid for, in this. direction, by turning it upon a longer course, hedged about by contentions and obstacles, and unknown expenditures and dl;llays.COnsiderations alone of otherponfiicting public interests, or rights, :'cQuld JW,tifysuch judicial '. determination.' Vide; Mohtle &- G. R. Co. "'. Alabama R. Co., 6 South.' 404·. It is next insisted by defendant that the land sought to be conq.em.oe!Ullls.alreadybeen.appropri8.tedby it to its uselffl:a public milorat.leastthat it acquired it by purchase,with a view to, sla;Q:h tpat ,ill highly .probabk it will in the nea,r future bet,o its The evidence, shows part Qf;abod;Y. of 12 acres which was purchased byone Meia; for defeI1dant. This state4: ; or4ers to purchase it framMr.Egbert,. [J:epresentative of '. Hetolc;l me to go and buy before ,t.he CQuld,get ') ,:' · was Valley Railroad,about to hito Denver, and &eeking termhw:l facilities. Mr. ,Choate, su,of defendant .119a4,testjfied, substantially" that :this piece Qf.landwas forjhereason that, the BurlingtOIl Rl1ilroad was trying Jo; get anentra,nce into the city )ll;ijd, to injure property, and it was necessary tQ buy this to 'keep that road Jrom getting stated that in his opinion this laI1d would in the near .futull'e become necessary for ,the use of defendant, foradditional turn-outs and switch-yards, and tha,t they would have so improved it:buP.fov;tpelack of funds, and it'Wl:\.syet their purpose to. so use it. Itappeitr.s,];Iowever, ir9JiX1rthe the work, done upon piece, oLl,and was. the. (,pnstruotion 0f embankn1.ents, along or prlorto 1885, andl;>,efore Mr. Choate took charge as superintendent. have washed away somewhat,and .were, <111 grades th!tt of defendant's railroad tJ:3ck, and not at an , t,ion for switphes or tl,lrn-outs, 'from· the .tnq.in trll-ck, ,No' been constructed, upon. it, /l.nd no other it,i ,Witho1,1timputing t();thedefendant oompany ,the selfUIotive, of being actuated in,the aequisition 9f, this ,a 401l ire to, obptruct the Burlington road's acoessto, the Union the utlll,ost thfl,tcan be conceded: to the defendl1lit,ill.that it that piece luigh,t ,become,necessary 1(1;>. ;the full of its in the future, ·anil that it, expectS ,to so ,T:hijJ is'but a prQflpective dedication, which; may or, may 1m· ;ura<Je. If. the defendant were' seeking to CQndemn llrq$pectj.v.einm:e&lOIlA)f, .it:;> pq$i.nesf,lj ."il sbl:iwd; be
COLORADO E.
CO· .,. UNION PAC. RY. CO.
301
established beyond reasonable doubt that such increa.se will occur. Railroad'Co. v. Davis, 43 N. Y. 145. While not holding defendant to the samo,rigorous rule as if it were seeking to condemn this property, yet "no one can blink so hard as not to see," frotn the evidence as a whole, that the defendant has not for five years done any other act looking to the subjection of this piece of ground to its use; and, if it is held exempt from the exercise of the right of eminent domain, it rests for its foundation upon conjecture, ora contingency that no court can say with assurance will ever arise. The evidence shows that this defendant has a large amount of other land, some 275 acres, in Denver, appurtenant to its line of railroad, a part of which, at least, can be made quite availa:ble for any use similar to that for which it claims to hold this. In view of its greater necessity to the petitioner, as already demonstrated,I feel constrained to hold, both on reason and authority, that this merepl'ospective use by defendanhhould yield to tbemoreim:mediate necessities of the petitioner. SpNm.fijieldv. RailrqadCo.; 4 Illinois & M: ao. v. Ohicago& R.. Co., 14 IlL314j Bon, 91 N. Y. 552; Eastern R. Co. v. Boston & M. R. Co., 111 Mass. 125; Grand Rapicls, N. & L. S. R. 00. v. Grand Rapid$ & 1. R. Co., 265,24 Amer. Rep. 545, and note. Merepriorlty ohcquisition, or even Of occupation, gives no exclusive right, except in so far as the tion trenches upon the greater necessities of ;other franchise. EaSt St.L. C. Ry. Co. v. East St; L. U. Ry. Co., l081lt265j Lake S.&' M: S. By. Co. v ·. Chicago & W.· 1. R. Co., 97111. 506. . ." ' 4. It:isfinally contended by defendant that petitioner had hithert6 exerCised its right of location of its road, and had fixed its western terminus at a point known in evidence as "Twinings," in the suburbs of the city of' Denver; that, having.' once' exercised the pow-ef granted, it was exhausted. This rests upon the rule of the common that if man once determines his election it shall be determined forever. Com. Dig. tit. "Election." The sense of .this'rule is very aptly'llhii perspicuously expressed by Lord ELDON in Blakemore v. OanaZ 1 Mylne&K. 154: . ' . .... ...' ....' "Whenthecanal is completed, the powers of the company and in making the canal the proprietors ** ... are not at lioel'tyafter::wards toinjul'e the interests of parties by making what is qnitea dUfel'imt canal." Leaving out of view, for the time, the ColoNl.d() statute hereinMter noticed, bad the petitioner, as a mattl:lrof fact, made such election of location of its terminus I+t Denver, when it instituted this proceedipg; to a,uthorize .the. court to say. it. had exercised' ana exhausted" all power granted it 'under itsoriginill charter? This charter gave it the right to build its road "from Denver." It is not too much tosay that no court would now meet the 'trend of judicial adVancement in hdldingthat the"term"from Denvel.''',did·uot confer 011 this company the power to build to any point within the city. In Morris. &¥,. R. 0>;. v. Central Il.Co.,31 N. J. Law:,2U et seq., it was held that the term"between two towns"would very clearly include the right of carrying sncPfoodinto
a
FEDERAL BEOORTER';vol
',l
'ell,Qh"plaQ6.· ·"To the city of
beldto ittlparta'n authe road within the corporate, limits. Railroad Co. v. Pdu'T1l;o3 Tex. 843; VidePeopld.·v.· Railroad Co., 89N. y.75; Turnpike ll0(4d'v. 10 Johns. 389; Mohawk Bridge Co. Utica & S. R. Co., 6 Paige, 55'4.; Mason v. Railroad Co., 35 Barb. 377; Chicago & N. W. R. OJ. v.Qhicago & E. R. Co., 112 Ill. 599. Unless, therefore, it affirmativelYllppears that the petitioner, had made its election,· evidenced by sotneact ,permanent in its character, to fix the eastern terminus of its road at Twinings, its original charter. unquestional;>ly conferred upon it authority to. Quild to the Union depot. As said in Ohilda v. Railroad Co.,
33 N.J·.
seded.cpmpal'lY, tQ,tbe ,implication that they considered or treated, FWlfl as. point of fact, this road has been used and trtoatedas a ftmshed road tblscompany, such ,tact should been mani!eli.ied to tbe court. that cats bave been run uponiti ,is 'Dot' 'of itself sufficlent,8s such is often the caSe on incomplete roads...·;:.; ".
"The: m&'efact that they rthe rambad company] have been running their carsovelyithia road·bed; in the condition in which it was left by the super-
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t4e this issue that the petitioner never, intendel;l,' by beginning at the point to treat that as all elected terminus of the ;n>ad; and the fact!!. and .circumstances tend to show that it was but temporary expedient. by counsel for defendant, the character, pf. the and improvements at this station were the most trifling and tCmporary" the road stopped there heCause it 90u1d getJ at that time"no nearer its ",estern destin.ation. In tlle very .the original incorpora,t.ion, the evidenceshowsthafthecompany applied to and obtained Jrom the city of Denver an it to J9cate its road, from Twinings westdown.WeW:tttta strpet" int4e ,qire<;:tion of the ,Union depot, and of the and in Jdarch, ,1887,' it from the city anOther ordinance, whIch allowed the further construction of its road on said street ali! as it was ·opened. It had actually proceeded to lay its· traok on as far as 'open; !,trid the evidence ehows ?atit has contill).Jallyma,ldngetforts to secure this outlet, expending tnereforlarge sums of money. Under such state of facts, I donot feelwarrallted in holding that the petitioner ever regarded or treated Twinitlgs'l\g'its terminus. ,Its stay there was rather a matter of compulsion .oI election·. " , .".,. " at the time petioner the state (Sectioll127, c. 19,' tit. " . ,.. , . '. . .,:' . fI" l., , ' " , .. " .', . ,J ,/' It sba1l1:l.e, for anyraill'Qlld,01: orcoporation. \1!>Qlla 10 ,Bl(rsoIl, or by prc,>xrpf lit :valUE! opts, at to alter and ,amelld Its attlCles, M assoClatlOnso as to change its ·tl>fmihkor'soas to, extend the length oHhe'Une therl'of from eitber.otita telllDlnt to sllchfurtberand·other point·as' they :may determine. or for thepurpose:o.fconstructingbranches from iU,m,ain' line; and upon
4.:
of
'303 :,suchvote the saId company may make articles amendatqryolUqeir articles, for the purpose of extending or changing the lilUl ot constructing branches from its main line, as aforesaid." . or for
And then, after providing for the proper recording, etc., of such amendment, the sectionclpses as follows: "Such amendment, amendments, or alterations shall have the. same force and etIect:asthoughsaid amendment had been in,.and made a .part of, and embraced in, its origin," articles of association."
The evidence sho'Wsthaton the 8th day of June, 1888, the petitioner availed itself of this statute' by whi1:h its line of road might be extended from' Scranton eastward to· the line betwooh the states' of ColoraddaBd Kansas, designating the Union depdtas its western terminus; 'and'also changing the name of ,to that of "The RailroadCompany." These facts are set up in the amended petition on .: parties have' gone to trial. ;The defendant makes two objee. First,. that the said' provision' of ·.tionf(to this claim, · applies, .. .?fa CQI'IJPm,tion.befOl:e. it 1?a,S bUlb Its road and estabhshed Its terniiUl; and, second, that .thisactwp .was taken py the petitioner after the institution. of this condemnation proceedirrg'.Respe<::ting the fitstolljection; it must be conceded !that there'is;nothing on the face of thesootion of indicate that such' right.'of: amendmentwlls to be limited as' contended by defendant. "Tochatl@'its termini,orso as toext&nd the length of the line thereof fromeithe't'ofits terrtiini to such further and'other point :'8S they' may deterrnine,'''would'irnply tl1at:the termini had been esmb-and the line tiftee·road located. There is' no limit on· ,the face 'of the 'statute itself aeta the time when. this change may be made; but it roay .be done "at anyrneeting" in valtle of its eI'S. Certainly, if it had been· within the mind: of the framer of the law toput sticha limitation tlponits' operation, some apt expression : live thereof would have been employed. '. It might be sufficient, on lan';gUage 'eo broad, to say that the statute must stand for a reason. But, if 'one IS to De given tojustify a broader: oonstruction tMn that contended %r bylhe learned the defendant, a most palpable onew-ould · present in tbevery history of the commercial life of .the state of Her' mines of coal, silver; r gold, and other precious metals "are the chiefsources oiher wealth and prosperity.. Without them;the State would fall far below her imposing attitude as a member of tbeFedetal Uniori. The de\."elqnnent of these· mines is a matter of paramount :importance to the eornriIOnwealth. A mine is discovered in her m.ountains.' The exciternimt' iridident to such an event draws to it.swarms of ·miners; prospectors, andspoonlators. Villages spring up at these points as the magic cretitioti ofll. night. A charter for a. railroad is obtained to Teach such;a ,point, aildaff.ord a market for itsproducta, and bring suJ1l-plies for the Bustenanceof tbe peoJPle gatheredaroul1d, 'fhese: mines, not illfrequently, are 'soon exhausted and shut down, and as Buddenly'8.S they werecrented the villages drsappear, Qther mines fuI'ther:oo are ; a:i.'l:d the. history justgivenrepeats New towns are !COI1-
_804
I'lllDEBAL
,: up in a new and rapidly growing state. Recognizing ,the'genet'al rule of law contended for by defendant, that a road once located, and a terminus once fixed, is an exhaustion of the power granted, the legislature must have intended by, this very provision of the statute to remove this obstruction, and meet the very necessities of her peculiar condition. Counsel' fot defendant seeks authority or reason for his construction of said statute by reference to section 115 of the same chapter; to understand which we must g.Q'bACk to 110, which provides, inter alia, for a change of the namlh the placeofpusiness, the, increase or decrease of the capital stock, or a 'change of; or for consolidlltion of such Section 115 declares of name; place of business. increase or decrease of capital Btock" increa!ltl or decrease of number of directors, managers, or trustees,or consolidaticm.ofone corporation with,another or with others,shall ,not affect which such corporatiol1 or corporations shall be parties; nor change aJ;fect action·. oorthe rights of in any parbl'ought against such corporation by its former name ,tlcular; nor '. ". ' . . 'be abated.'" ,The llrguIDent made on this is tbat, 8,$ this section provides that such ,change of name, .place of business, increase or decrease of stock and di:rectors, etc.; shallllot fl,ffect suits, nor causes ofaGtion, nor the rights of parties, etc., purpose to exclude from its operation the change of termini or. the line of road, and therefore it wasnotu<i>ntemplated that any changeofthe.1attel' character could take place 'in:.a "'going concern." On this,: I submit the following observations:' The provision respecting the change of terlllinl occurs in a subseqtient;section of the statute; and, it is but reasonabJe to say, doubtless .tbe lep;islatnreassumed'that the provision of section 115 would apply equally to the amendment provided for in section 127, as nl) reason occurs to my' mind forMY":distinction in the matter of pleading and suits respecting these provisions. "The intention of a legislative act may often be gathered from a view of the wpole and every part of the statute t taken and compared together. When the true intention is accurately ascertained, it will always prevail over the literal sense of the terms. * **And when it is doubtful whether a certain thing falls within the. terms used in anaet it is proper to resort to other statutes to ascer-' tain the intention of the legislature in the the general statute. * ,,*, . ..,. A thing within the intentiqn of the legislature in framing a stature, is sometimes as much within the statute as if it were within the letter. "" In 1'6 Bomino'8 Estate, 83 Mo. 441. Said section 127, authorizingauchialteration or amendment, being in the statute at the time of the grantor petitioner's charter·.this. provision was as much a part of the graat as if .it had been expressly. in it. Therefore.. in .so far as third parties are concerned, those dealing with the corporation, or with whom the come to deal; they would be 8ubjecttto the rights and privileges conferred by this statute. Amendmentsare,allowe'd by courts witl;l great liberality where. no material
KEOKUK
& W.R.
co. ".COUNTY COUR'rOI' -SCOTLAND
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right.8of the other party -are affected or changed, and where no great prejudice could likely ensue. The only possible effect of allowing this objection. would be, if the petitioner's right to proceed depended upon this amendment, to turn it out of court, and compel it to begin de novo. Nothing thereby would be gained by the defendant except delay; and it does seem to me that the very spirit of the law should compel the court, in stich instance, to let the cause proceed. Under the view, however, I have expressed of the petitioner's right under its charter as it existed at the date it instituted this proceeding, it was not necessary for it to invoke the amendment of June 8, 1888, to enable it tt> reach the Union depot. Other matters might with propriety be discussed, arising on the evidence and the argument of counsel; but, as they are. not determinate in their character, and this opinion has already been greatly extended, further discussion is forborne. It results that the issues on hearing' are found for the petitioner, and judgment will be entered accordingly.
KEOKUK & W. R. Co. ". CoUNTY COURT
OF
SCOTLAND
CO.
e! al.
(CircUift Oourt, E. D. Missouri" N. D. January 28. 1890.)
L
R.uLBOAD,CQIlI'PANIEs-,-CONSOLIDATION-ExEMPTION J'ROIll' TAXATION.
I.
A consolidation of two railroad companies underJ,be Missouri consolidation act of March 2,1869, operates as the creation of a new corporation, wholly distinct from .the-constituljnt, corporations out of which it is formed, whion new corporation derives its powers and franchises from the consolidation. act; . and since Const.. Mo. 1865;-art: 11, §16, prohibiting legislative exemption from'taxation, was adopted before the passage of the act, the consolldated corporation does not acquire the immunity .taxation grantl:ld in 1857 to one of its constituent corporations. Sta·te v. Rwttroud Co., 12 S. W. Rep. 290, followed. Thlj fact tbat the supreme court .of Missouri in a former decision, in whloh the exemption of the consolidated corporatiou was not a controverted question, assumed that it waaexempt, which deci.lob. was followed by this court in a case wherein no questions' were ,considered except as had been previously considered by the state supreml:l court, does not establIsh a settled rule, of property, to which .this court is bound to adhere.
COURTS-FEDERAL COUBTS-FOLLOWING DECISIONS OJ' STATE COURT.
On bill for injunction. F. T. Hughes, for complainant. John a.Moore, T. S.MootglY'lTU:l"Y, and Ander80n &- Schofield, for defendants. 'THAYER, J. This is a proceeding on February 13, 1888, ag!&ins the county courts of Scotland, Clark, and Schuyler counties, Mo., and against the several persons who at that time were judges of said courts, and also against the several collectors of revenue for ,said counties,to restrain them from collecting, or attempting to enforce the' collection of, certain taxes assessed against a certain railroad extending through. the counties aforesaid, which at the date of the filing of the bill belonged to v.41F.no.5-20
In Equity.