Baltimore & O.R. Co. v. City of Wheeling

• Decision Date: 23 May 1855
• Citation: 54 Va. 40
• Court: Virginia Supreme Court
• Parties: BALTIMORE & OHIO R. R. CO. v. CITY OF WHEELING.

54 Va. 40

BALTIMORE & OHIO R. R. CO. v. CITY OF WHEELING.

Supreme Court of Appeals of Virginia.

May 23, 1855

1. A proceeding for a contempt in disobeying an injunction is not an order in the cause; but is in the nature of a criminal proceeding, and the judgment in such a proceeding can only be reviewed by a superior tribunal by writ of error, and not always in that way.

2. An order overruling a motion to dissolve an injunction may be appealed from, if the principles of the cause are thereby adjudicated: and this though such an order is made in vacation.^[a1]

3. The court, for good cause shown, may overrule a motion to dissolve an injunction and continue it to the hearing without adjudicating the principles of the cause; in which case no appeal will lie from the order.

4. Where the principles of the cause are adjudicated by such order, an appeal may be refused, if the court or judge to whom the petition of appeal is presented deems it most proper that the cause should be proceeded in further in the court below before an appeal is allowed therein. And if, in such case, an appeal is allowed, it may be dismissed as prematurely allowed.^[d1]

5. In a case which is purely an injunction cause, the parties having had time to prepare the case, and having taken testimony to support their respective pretensions, and it not being probable that any other facts can be brought into the cause which will affect its principles, a motion was made in vacation to dissolve the injunction, on the ground that it was improvidently awarded, and upon the cause as it then stood. The hearing of the motion was objected to: 1st. Because a foreign corporation, which was a party, had not answered. 2d. Because exceptions had been filed to the sufficiency of the answer of the defendant, which were still pending and undetermined. 3d. Because the answer of the defendant, a corporation, was not verified by affidavit. The judge heard the motion, but refused to dissolve the injunction, and continued it until further order or decree. HELD:

1. The refusal of the judge to dissolve the injunction adjudicated the principles of the cause to the extent that the injunction had not been improvidently awarded; and that the cause, as it then stood, ought to be continued. It is therefore such an order as may be appealed from; and it is a proper case for appeal at once.

2. That the defendant which had not answered being a foreign corporation, which could not be compelled to answer, and the answer not being required for a discovery; the absence of such answer is not ground for refusing to dissolve the injunction.

3. That as upon a motion to dissolve an injunction all the allegations of the bill, which are not denied by the answer are taken as true, it is no objection to the motion to dissolve, that the exceptions to the answer for insufficiency had not been acted on.

4. As a corporation cannot be sworn, it must put in its answer under its common seal only. Not being sworn to, it is not evidence for the corporation, though responsive to the bill; but it puts in issue the allegations of the bill to which it responds: and this as well upon a motion to dissolve the injunction, as upon the hearing.

6. The act of March 6th, 1847, Sess. Acts, ch. 99, p. 86, in securing to the city of Wheeling the benefits of the western terminus of the Baltimore and Ohio rail road, does not forbid said company to connect with the Ohio river or a rail road in the state of Ohio, at any point between the mouth of Grave creek and Wheeling.^[a1]

7. To induce the Baltimore and Ohio Rail Road Company to accept the act of March 6th, 1847, the city of Wheeling and the company entered into a contract, by which Wheeling undertook to do certain things therein specified; and the committee of the company agreed to recommend to it to accept said act: " It being the intention of the parties to the agreement, among other things, to secure to the city of Wheeling the practical benefits of the terminus of the Baltimore and Ohio rail road according to the provisions of said law." The company is not forbidden by the contract to connect with the Ohio river or a rail road in the state of Ohio, at any point between the mouth of Grave creek and Wheeling.

8. The Baltimore and Ohio Rail Road Company having been subjected by the act of March 6th, 1847, to the provisions of the act in relation to rail roads, passed March 11th, 1837, " so far as the same are properly applicable; " under this last act, the company has power to make a branch road from the line of her road to low water mark on the Ohio river between Grave creek and Wheeling, in order to form a connection with the river, and with a rail road in Ohio, terminating opposite on the other bank of the river.^[a1]

9. Although a stockholder in a corporation may enjoin it from employing the property or powers of the corporation for a purpose wholly or materially different from that which was designed by the act of incorporation, yet it has no right to enjoin it from doing what is in direct furtherance of the object of its creation, and is for the benefit of all the stockholders as such; though it may be injurious to such stockholder in another character; or the interest of some other person or the public may be injuriously affected by the work about to be executed.

In November 1854, the city of Wheeling applied to the judge of the Circuit court of Marshall county for an injunction to restrain the Baltimore and Ohio Rail Road Company from forming a connection with the Central Ohio rail road at Benwood, a place on the Ohio river about four miles southwest of Wheeling. In the bill it was set out that the general assembly of Virginia, on the 6th of March 1847, passed the act entitled " An act to authorize the Baltimore and Ohio Rail Road Company to construct the extension of their rail road through the territory of Virginia," thereby intending, among other purposes, " to secure to the said city of Wheeling the benefits of the western terminus" of that road. That the act is framed with a view to require the business of the road at the Ohio river to be transacted or concentrated in the city of Wheeling as " the western terminus." That after the passage of this act a contract in writing was made between the said company and the said city, dated the 6th day of July 1847, and duly ratified by both parties during the year; it being the intention of the parties, as expressed in the contract, among other things, " to secure to the city of Wheeling the practical benefits of the western terminus of the Baltimore and Ohio rail road, according to the provisions of said law." That it was the duty of the said company so to exercise the privilege conferred upon it by the state as to secure to the said city the practical benefits of the said western terminus. That the practical benefits contemplated by the parties were the transaction in said city of the business between the rail road and the Ohio river, and that between said road and the Central Ohio rail road.

The bill further set out the performance by the city of Wheeling of the stipulations of the aforesaid contract, and especially that the city had subscribed for stock of the company to the amount of five hundred thousand dollars, and was a stockholder to that amount; though in fact at the time the subscription was made and since, the stock was worth little more than half that sum; and it was well understood at the time by the parties to the contract aforesaid, that the chief inducement to the city of Wheeling to make the said subscription and the donations and grants mentioned in said contract, was the expected practical benefits of the western terminus of the road, and not the value of the stock.

It was further stated, that in direct and manifest violation of these obligations of the law and the said contract, the Baltimore and Ohio Rail Road Company were engaged in the construction of certain works at and near Benwood, a place on the east bank of the Ohio river, about four miles southwestward of their depot in the city of Wheeling, for the purpose of there receiving and delivering the travel of the Central Ohio rail road; and for the same purpose had adopted and approved, in conjunction with the said Central Ohio Company, certain plans for the ferriage of such traffic and travel across the Ohio river at that place. And that the same structures were adapted and designed for making tranfers of freight and passengers to the Baltimore and Ohio rail road from vessels navigating the Ohio river, and to the latter from the former.

The bill further stated, that the road of the Baltimore and Ohio Rail Road Company having been built near the hills, this connection at Benwood could not be made without great expense; and it described the works which the company was constructing. These consisted of a branch road extending from the main track down the bank of the river, and into it to low water mark, the whole being about two thousand feet in length, and a large embankment being made into the river for about three hundred feet, upon which a wharf was to be constructed. Just opposite this structure was one like it, erected by the Central Ohio Company; and by the agreement between the companies, the latter was to run a steamer from the one wharf to the other for the transportation of freight and passengers. And it was charged that the object of this structure was illegal, and in violation of the contract between the city of Wheeling and the Baltimore and Ohio Rail Road Company; that the expenditure of the money of the company upon the work was an improper application of the funds of the company; and that the embankment and wharf extended into the river would be injurious to its navigation.

It is further stated, that the Central...