# Collier v. Union Railway Co.

> Tennessee Supreme Court · April 15, 1904 · 113 Tenn. 96

URL: https://www.frixlaw.com/law-library/cases/8300188

## Case

- **Full name:** W. A. Collier v. Union Railway Company and State, ex rel. Wellford v. Union Railway Company
- **Court:** Tennessee Supreme Court
- **Decided:** April 15, 1904
- **Citations:** 113 Tenn. 96
- **Precedential status:** Published
- **Opinion:** Dissent by Neil
- **Judges:** Neil, Wilkes
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8300188

## Opinion text

DISSENTING OPINION.
Mr. Justice Neil
delivered the following dissenting opinion:
I dissent from the opinion of the majority in these cases, on the following grounds:
1. I do not think chapter 142, p. 232, Acts 1875, covers the kind of railroad which the Union Railway Company proposes to construct. It is claiming the right, under the form of charter for a railroad company provided by that act, to construct a railroad lying almost wholly within the city of Memphis, beginning at a point in the southwestern part of the city, running thence eastwardly, thence northwardly, thence westwardly, and thence southwestwardly to the beginning or starting point *130 making in its course an irregular loop around tbe city, and throwing out here and there laterals or branches, and from these branches other branches, so as to push its way into and through various and divergent parts of the city.
Acts 1875, p. 238, c. 142, section 6, provides for a railroad which shall run from one point at its beginning to another and distinct point, as its terminus — a line of railway, not a loop or belt. It contemplates a line which, if it begin at or within a given town or city, shall run to, and terminate at, some other town or city, or some point beyond such initial town or city, and not one .which shall be confined to a single city. It looks alone to the creation of a line of railway which shall connect separated parts of the country, and which, for the purpose of connecting such distinct and separated portions of the State, and for serving the needs and convenience of intermediate portions of the country, shall have fixed and “regular times for the running of trains.” It has in view a railway company which shall transport not only property, but passengers also, and which shall provide for the latter not only safe, but comfortable and convenient, accommodations, and shall receive and discharge them at fixed points along the line, and which for this purpose shall have regular stations, and, in respect of freight, a road which shall receive for transportation not only the property of individuals, but full-freighted cars from other roads and transport them, without breaking bulk, to the place of destination, and return *131 the cars to the road from which it received them; but it is provided that it shall not be compelled to perform the latter service unless the point of destination of cars is at least twenty miles distant from the receiving point, showing that the legislature had in view a line of railway at least twenty miles long.
The statute provides that “the line or track of the road shall be so constructed as not to interfere with the convenient travel of the public along the highways, county roads, streets and alleys of cities, towns, and villages, and so as to allow carts and wagons, carriages and'other vehicles, conveniently and safely to pass over or under the line or track, and so as not to interrupt traveling on foot or on horseback, or in vehicles of any kind, from the necessary and proper use of the public road, street or alley, in the usual and proper mode for their convenience;” that boards, “well supported by posts, or otherwise, shall be placed and constantly kept across each public road when the same is crossed on the same level by the track of the railway, the boards to be elevated so as not to obstruct travel;” and that “on each side of said board shall be printed in large letters, easily to be seen by the traveler, the words, ‘Railroad Crossing, look out for the cars,’ ” but that “said boards need not be put up at the crossing of streets and alleys in cities, towns, and villages,” but that “such railroad company shall be subject to such proper regulations made by municipal authorities in pursuance of general municipal powers, regulating speed, passage, and flagmen, in such *132 municipalities.” These provisions show that the legislature had in mind, not a line of railway which should be confined to a single city, but one which should pass through the country, and connect cities and towns with each other.
The railroad before us in the present case fails to come within the foregoing provisions in the following particulars: It is confined to a single city. Its initial point and its terminal point are the same; that is, it has not an initial point and projection from that point to a different point, as its ending or terminal. From its very nature, as disclosed by its ground plan, it is designed only for the transportation of freight, and cannot accommodate passenger traffic. It has not the minimum length (twenty miles) which the statute contemplates, but, with all of its branches, only seventeen miles, and is therefore not of such a description as that it can be compelled to perform a very important part of the duties of a railway company; that is, the reception of loaded freight cars from other roads, their transportation and return.'
As to the first point, that the road is confined to a single city, I do not understand that the majority opinion contains any reply, unless it be found in the fact that in making the loop the line, in two places, runs beyond the city limits, then, turning, comes back into the city, but this is manifestly no answer to the point.
As to the second point, it is said that while it is true that the line has not a “final” terminal, so to speak, dif *133 ferent from its initial point, yet there are intermediate termini; that is, in filling in the charter form, the draftsman indicated the tnrns or bends of the loop by specifying certain points through which the line was to-pass in its progress from its initial point back to its initial point. I think it very clear that such intermediate! points can in no sense be considered as termini. On the contrary, they are but points in the location of the line. The charter form set out in chapter 142, p. 232, Acts 1875, section 6, does not provide for the insertion of intermediate points, but only of the initial and the terminal point — the beginning and the end of the line.
As to the third point, that the road is not designed for the transportation of passengers, it is replied, in substance, that when it shall hereafter fail to comply with that provision of the charter, if it shall ever so fail, then such dereliction can be looked after, but that we should not now anticipate such breach of duty. I deem this an insufficient reply. It seems to me that any one can determine from merely looking at the ground plan of the road, spread out as it is over the city, and running across lots to reach factories and other heavy shippers of freight, that it was designed ¿lone for freight service; that the thought of having stations for the reception and discharge of passengers, and fixed schedules for the running of trains, is wholly foreign to its purpose; that the accommodation of passengers, instead of being a use in harmony with the ends for which the road is to be constructed, would be a hindrance and obstacle in the way *134 of carrying out such purposes, and would be an assumption by it of duties performed far better by street car companies,- that practically no passengers would ever wish to ride on such a road; and finally that the suggestion which the road now makes, that it expects to accommodate passenger traffic, is merely colorable.
As to the fourth point, that the road, not having twenty miles of length, will not he compelled to receive loaded freight cars from other roads, this seems to have received no consideration in the majority opinion, yet it seems to me a very important point. It is alleged in these causes, and seems to be fully proven, that the .Union Railway Company is owned by the same people who own the Missouri Pacific Railroad. It will therefore be managed, naturally, as far as practicable, for the benefit of that corporation. The result will be that, whenever the interest of the Missouri Pacific Railroad Company requires that the interests of the other railway companies in the city shall be depressed, these interests will be depressed in so far as they can be, and the Union Railway Company will be used as an instrument to that end. By the use of the power of amendment which the majority opinion concedes to the Union Railway Company, that company will gradually push its laterals, and laterals from laterals, into all quarters of the city where any valuable freight is to be obtained, and, refusing to handle loaded cars for other roads at all, or only upon payment of an oppressive differential, will finally shut them out of the most of the important freight business of the *135 city. The only alternative left to the other roads will be .the building of similar lines, and when these are proposed the city will be confronted with the alternative of suffering the Missouri Pacific to absorb substantially all .of the traffic, and shut out all of the other roads, or of having its territory cut up in a similar manner by other roads, to the practical destruction of the city as a place to live in. Can it be doubted that the Union Railway Company will have the power to refuse loaded cars from other roads? It covers only seventeen miles, including all of its branches, and the charter says it shall not be compelled to receive loaded cars from Other roads unless the point of destination is at least twenty miles' from the receiving point. If offered such cars, and it refuse to receive them, and proceedings be brought to compel the performance of such service, it can stand upon its charter rights, and there will be then no power in the courts to compel. Thus the power to monopolize the character of traffic referred to is given, can there be any doubt that it will be used?
This result must follow unless the court shall hereafter hold that the charter does not mean what it says. The language of the charter upon this point is: “This corporation shall receive on their road full-freighted cars from other roads, and transport them, without breaking bulk, to the place of destination charging for the goods, wares, and merchandise therein, no greater rate of freight than, is charged for similar goods, wares, and merchandise in their own cars, and return said cars *136 free of charge, provided the cars thus to be received are good and substantial, and also provided the distance said wares and merchandise are to be transported is not less than twenty miles.”
The above-mentioned objectionable features, peculiar to the Union Railway Company’s road, seem to me to indicate that it is a kind and description of railroad that was not intended to.be authorized by the act of the legislature above referred to. Certainly no other road ever before chartered under that act is anywise comparable to it for peculiarity of plan and purpose, or possessed of such vast possibilities of power over the territory which it covers.
The majority opinion refers to a Kansas decision in support of its first position. I think that the decision referred to, based upon a statute very different from ours, can have little bearing, even as persuasive authority, in the construction of our own statute. Certain it is, it has no binding force.
2. I do not think there was any legislative authority for making the so-called amendments. By virtue of these amendments, sundry extensions, additions, branches, and branches of branches — seven in all — have been ingrafted on the original road, so that it is now more than twice as large as it was when its charter was obtained, in 1886. These extensions and branches thread the city, north, south, east, and west, and one branch penetrates its center.
The authority which the majority rely upon as justify *137 ing these amendments is chapter 116, p. 271, Acts 1897.
That statute, so far as it bears npon the present inquiry, reads as follows:
“The stockholders of any corporation, organized under a charter obtained under the provisions of the act entitled, ‘An act to provide for the organization of corporations/ passed March 19, 1875, approved March 28, 1875, and being chapter 142, of the Acts of 1875, or organized under a charter obtained under an act amenda-tory to said act, or subsequent thereto, who may desire to change the name of such corporation, increase its capital stock, or obtain any power granted either by_ chapter 142 of the Acts of 1875, or by any act amendatory or subsequent thereto,' shall have the right to do so under and in the manner provided by section 19 of said chapter 142, of the Acts of 1875, which provides for the amendment of charters granted by the legislature, and with the like effect as therein provided.” ■
Section 19, page 257, of chapter 142, Acts of 1875, provides :
“That any corporation heretofore chartered by an act of the general assembly, which may desire to change its name, increase its capital stock, or obtain any powers granted by this act, shall have the right to do so, by the board of directors of said corporation copying said amendment, and making an application in these words: ‘We the undersigned, composing the board of directors of (here insert the name of the corporation) apply to the State of Tennessee, by virtue of the general laws of *138 the land, for an amendment to said charter of incorporation, for the purpose of investing said corporation with the power (here state the clause in the general law, aforesaid, which is desired as an amendment, or if it be simply to change the name, so state the fact). Witness our hands, the-day of-.’ (To be signed by the directors.) The same to be probated or acknowledged as provided by section 15, of this act, and the certificate of registration given by the secretary of state, under the great seal of the State, shall complete the amendment to said act of incorporation, and the validity thereof shall not, in any legal proceeding, be collaterally questioned, as in cases of application for original charter.” 1
Upon reading the act of 1897, reproduced above, it is difficult to preceive wherein it provides for the making of extensions, or the construction of laterals or branches.
It is certain that no reference is made to these matters in the text of -the act. It is undeniable, therefore, *139 that tbe power to. make such “amendment” cannot be directly deduced from tbe act itself.
As I understand tbe position of tbe majority, it is that tbe power is to be found in chapter 142, page 232, Acts 1875, referred to in tbe act of 1897. As shown by section 19 of'the act of 1875, above copied, that act does provide for tbe making of amendments by corporations chartered by special acts of tbe legislature, and tbe act of 1897 extends the same power to corporations chartered under tbe act of 1875, page 232, chapter 142, and under acts subsequent thereto'. Tbe power of amendment given in tbe act of 1897 is “to change tbe name of sucb corporation, increase its capital stock, or obtain any power, granted either by chapter 142 of tbe Acts of 1875, or by any act amendatory or subsequent thereto.” A perusal of chapter 142, page 232, Acts 1875, for tbe purpose of discovering therein a power to make sucb “amendments” as extending tbe line of a railway beyond tbe terminus originally fixed in its charter, or tbe building of laterals, or laterals branching out from laterals, will be in vain. No sucb power can be found there. Tbe subject is not mentioned in that act. It is conceded by tbe majority that there is no subsequent valid act that would justify such amendments as those above referred to, and I need not go into that matter. The necessary conclusion from what has been stated is that tbe amendments were made without authority of law.
3. Tbe conclusion of tbe majority of tbe court has *140 been reached by a most latitudinarian and expansive construction of chapter lib, page 271, Acts 1897, and chapter 142, page 232, Acts 1875 — so much so that Í may well apply to the process a reference which Lord M'acaulay makes in one of his essays to the tent which the fairy Parikanou gave to Prince Ahmed: “Fold it, and it seems a toy for the hand of a lady, spread it, and the armies of powerful sultans might repose beneath its shade.”
The rule often heretofore announced in this State is that charters, grants of power by the State to corporations, must be strictly construed. The rule on this subject is that nothing should be taken or conceded, as against the State or public, in favor of the corporation, that is not given in unmistakable terms, or by an implication as clear. Turnpike Co. v. Davidson County, 106 Tenn., 258 , 61 S. W., 68 ; Gas Co. v. Williamson, 9 Heisk., 326 ; State v. Turnpike Co., 2 Sneed, 89 . Numerous other cases might be cited from our reports to_ the same purport. It is true that several of the points stated in this opinion are technical in their nature, and are based upon a very strict construction of the acts referred to; but it is just this character of construction that all our prior cases and the law and sound public policy require, when the court is called upon to construe legislative grants that in their nature purport to convey privileges and powers that carry somewhat of the sovereign authority of the State itself. This fundamental *141 rule has, as I conceive, been wholly disregarded in the present case. f
In conclusion, I may add that I am not disposed to controvert the proposition that roads of the character of the Union Railway, when properly restricted, may he very useful, and, in a sense, necessary to the full development of the cities of the State; hut they should obtain their charters under clear, unambiguous, and unmistakable legislative acts, not from the courts by dubious and uncertain construction of existing laws that on their face seem designed for other purposes. Such a course of construction may be productive of a present'good to one or more communities of the State, but, if persisted in, cannot fail to be hurtful to the whole State. It is safest and best to stand by the old landmarks of the law, and especially that one which requires that grants of charter powers shall be strictly construed;
Note by Mr. Justice Neil:
The foregoing is an exact copy of section 19 of chapter 142, Acts 1875. In the majority opinion there is inserted in the second bracket, in place of what appears in the original, the following language, viz.: (“of constructing, maintaining and operating a railroad along and over the following routes, which are in addition to the route already granted to it, by its charter”). These words do not appear in the original, but were substituted in the majority opinion in place of the words appearing in the original, as, no doubt, a construction of these words as applying to the kind of case we have before us. But with all due respect to my learned brothers. I am constrained to say that, in my judgment, there is no “clause in the general law” on which that substitution can rest, and the majority opinion does not undertake to point out such clause.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8300188. Public record. Not legal advice.