# Rogers v. Nashville, C. & St. L. Ry. Co.

> Court of Appeals for the Sixth Circuit · November 9, 1898 · 91 F. 299

URL: https://www.frixlaw.com/law-library/cases/8863943

## Case

- **Full name:** ROGERS v. NASHVILLE, C. & ST. L. RY. CO.
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** November 9, 1898
- **Citations:** 91 F. 299; 33 C.C.A. 517; 1898 U.S. App. LEXIS 1849
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Lurton, Severens, Taft
- **Cited by:** 35 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/8863943

## Opinion text

On Petition for Rehearing.
(December 19, 1898.)
The court has been asked to grant a rehearing in so far as under its opinion it is decided that under the statutes of Tennessee the Nashville, Chattanooga & St. Louis Railway Company could not enter into a valid contract of lease without the consent of three-fourths of its capital stock present and voting. A reconsideration of this matter-is sought, first, upon the contention that section 1273 of the Tennessee Code should be regarded as “a particular act referring to the leasing by railroad companies of lines connecting with them,” and that the act o£ 1881, c. 9, is a general act, and not to be construed as repealing a “particular act” applicable only to a special class of objects, or to a “special subject,” there being no reference in the general act to the former “particular act.” For this doctrine reference is made to Sedg. St. Law (2d Ed.) 97; Suth. St. Const. §§ 157, 158; Ex parte Crow Deg, 109 U. S. 556 , 3 Sup. Ct. 396. This principle is thus stated by Mr. Sutherland:
“The purpose of a general act relative to a given subject may harmonize with a different purpose oil that subject in a particular locality, or under special conditions, or as it affects a particular interest,or a particular person or class; it may harmonize in the sense that both purposes may be effectuated. The purpose of the general law may be carried out, except as to the particulars in which a different intention is manifested. It is a principle that a general statute without negative words will not repeal by implication, from their repugnancy, the provisions of a former one which is special or local, unless there is something in the general law, or in the course of legislation upon its *322 subject-matter, that makes it manifest that the legislature contemplated and intended a repeal. Wlien the legislator frames a statute in general terms, or treats a subject in a general manner, it is not reasonable to suppose that he intends to abrogate particular legislation, to the details of which he had previously given his attention, applicable only to a part of the same subject, unless the general act shows a plain intention to do so.”
This principle is not applicable here. Seccion 1273 can in no sense be regarded as a “special” or “particular” act. It applied to all railroad companies owning “any main line,” and gave to all such companies the power to contract with “any company owning a railroad connecting with such main line, for the lease thereof.” It operates to grant a power not possessed by railway companies at common law, and so wide as to embrace the power of leasing any railroad which was not one entirely disconnected with that of the lessor company. The former law (Act 1857, c. 8) had expressly authorized such contracts upon terms agreed upon “between the president and directors” of the contracting companies. The code provision operated to repeal this act of 1857, but provided no method by which such lease might be made; thereby compelling a resort to common law for the determination of the question as to whether contracts of lease might be entered upon without the consent of the shareholders. The act of 1881, c. 9, covered the whole subject embraced by section 1273. It grants a power broader than that found in the old law, in that there is no limitation to “connecting railroads,” but couples with this grant of power the important proviso that such contract should be approved by three-fourths in amount of the entire capital stock. This regulation of the manner in which such contracts might be entered upon, being made by an exception or proviso, operates as a prohibition upon the making of any contract embraced within the act, except in the manner and under the provisions of the act. The same act also confers the power of leasing out, and of selling or buying, and requires that all such contracts shall be submitted to the shareholders for their approval. The power of leasing out a railroad, or acquiring another by lease, is one which very vitally affects th'e contract between shareholders. That every such contract should he referred to the shareholders is, therefore, most reasonable; and it should not be lightly presumed that the law-making power would,'when, dealing with the general subject, intend to provide that some contracts of this character should be submitted to the shareholders for their approval, while others just as. vital might be made without their consent;
It is said that the act of 1881, c. 9, is not a “negative,” but an “affirmative” statute, and that, therefore, it should be construed as an act extending the power of leasing to the cases not provided for by the older law. If the older law was in fact a “special law” or a “particular act,” there might be some reason for applying this technical rule of construction. All rules for the construction of statutes have but one end,—the ascertainment of the true intent and meaning of the act in question. In Mayor of London v. Reg., 13 Q. B. 33, Alderson, B., said that:
“The words ‘negative’ and ‘affirmative’ statutes mean nothing. The question is whether they are repugnant or not to that which before existed. That may more easily he shown when the statute is negative than when it is affirmative, but the question is the same.” •
*323 The repugnancy between the old and the new law lies in the fact that the new’ law provides that such contracts shall be submitted to the shareholders for approval or rejection, while the old law was silent as to the power of the shareholders over the subject. Undoubtedly the general rule is that, when there are two acts upon the same subject, effect should be given to both, if possible. This is impossible, if the two acts are repugnant in any of their provisions. The new law must, therefore, operate as a repeal of the old law, without regard to a repealing clause, to the extent of the repugnancy. Neither is it always essential that there shall be an-express repugnancy between the new and old statutes. If the latter law covers the whole field embraced by the earlier act, and includes any new legislation tending clearly to indicate that the new statute was intended to take the place of the first act, it will be treated as repealing by implication the older provisions upon the same subject. It will not be presumed that the legislature intended two distinct enactments upon the same subject. Suth. St. Const. §§ 154-156. In U. S. v. Tynen, 11 Wall. 88, 92 , Mr. Justice Field said:
“Where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.”
To the same effect are Pierpont v. Crouch, 10 Cal. 315 ; Schneider v. Staples, 66 Wis. 167 , 28 N. W. 145 ; Com. v. Cooley, 10 Pick. 37 ; Druggists’ Cases, 85 Tenn. 450 , 3 S. W. 490 ; Poe v. State, 85 Tenn. 495 , 3 S. W. 658 .
The act of 1881, c. 9, is clearly a revisory act, and as such operates as a repeal of the former law included within the general subject.
Second, it is said that an act passed in 1891 (being chapter 125 of the Tennessee Acts for 1891) operates as a repeal of all former legislation upon the subject of leasing “branch” railroads, and confers the power to acquire such “branch” railroads without the approval or consent of the shareholders. This act was passed at the same session of the same legislature which passed the act of 1891, c. 61, which has already been considered and construed as a re-enactment of the second section of chapter 9 of the act of 1881, in so far as that section, provided for the acquirement by lease of connecting lines of railroad. Chapter 125 makes no reference to chapter 61, and none to any previous legislation upon the same subject, and contains no repealing clause. It is in these words:
“Section 1. Be it enacted by the general assembly of the state of Tennessee, that any and all railroad companies now or hereafter existing under the laws of this state, or of this state and any other state or states, whose charter of incorporation was or may be granted by this state, he, and they are hereby, authorized and empowered to acquire the line or lines of any other railroad company, either in this state, or any other state or states, which may connect with and form a part and parcels or branches or extensions, by purcha.se, lease or otherwise, and pay for the same by the issue of their own capital and bonds, or by guaranteeing- those issued by the company whose line may be so acquired, purchased or leased; provided, however, that nothing in this act shall he construed so as to authorize the acquisition, in any way, by any corporation or company, of parallel or competing lines.”
*324 This act was not overlooked, though not referred to in the opinion of the court, as it perhaps should have been. It covers a more limited subject than the existing law, in that it empowers any of the companies chartered under the laws of Tennessee to acquire the line of any other railroad “which may connect with and form part or parcels of branches, and -j-0 pay for game by its own stock or bonds, or by “guaranteeing those issued by the company whose railroad may be so acquired.” The power to guaranty the bonds of another railroad company conferred by section 2 of the act of 1881, c. 9, was limited to the bonds of a railroad “whose original charter of incorporation was granted by the state of Tennessee.” This limitation is not found in the act of 1891, c. 125. Under the latter act, power is conferred-to pay for railroads acquired by purchase or lease, provided the roads so acquired “connect with and form part and parcels or branches or extensions,” and are not parallel or competing lines, by guarantying the bonds of the company whose railroad is so acquired without regard to whether the charter of the company, whose bonds are so acquired, was or was not a company whose original charter was granted by the state of Tennessee. This is the gist of the act of 1891, c. 125. It is not repugnant to any existing law, and both laws may be saved and given effect. It in no way regulates the mode in which the lease in question may be made. The mode in which the power of leasing may be exercised is pointed out by the act of 1881, c. 9, as revived by the act of 1891, c. 61. The new act contains nothing inconsistent therewith, and it should not be construed as intended to affect the positive provisions of the general law regulating the details of the exercise of the power. The question is much like that presented by the acts construed by the supreme court of Tennessee in Frazier v. Railway Co., 88 Tenn. 138 , 12 S. W. 537 . The application for a rehearing must be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8863943. Public record. Not legal advice.