Cheraw & Salisbury R.R. Co. v. Comm'rs of Anson

• Decision Date: 28 February 1883
• Citation: 88 N.C. 519
• Court: North Carolina Supreme Court
• Parties: CHERAW & SALISBURY RAILROAD COMPANY v. COMMISSIONERS OF ANSON.

88 N.C. 519

CHERAW & SALISBURY RAILROAD COMPANY

v.COMMISSIONERS OF ANSON.

Supreme Court of North Carolina.

February Term, 1883.

MOTION for injunction heard at Spring Term, 1882, of ANSON Superior Court, before Shipp, J.

Motion refused and plaintiff appealed.

Mr. James A. Lockhart, for plaintiff .

Messrs. Burwell & Walker and Little & Parsons, for defendants .

SMITH, C. J.

On the 2d day of February, 1857, the general assembly passed an act incorporating a company by the name of “The Coal Fields and South Carolina Railroad Company,” as designated in one section, and in another, “The Cheraw and Coal Fields Railroad,” having for its object the construction of a line of railroad connecting with some one of those then built, or in course of building, in that state, and passing by Carthage, terminating at the coal fields, on Deep river, in Chatham county. Its capital stock was fixed at two million dollars, and the company, when formed and organized, was invested with all the powers necessary to the successful prosecution of the enterprise.

Section 20 enacts “that the franchise hereby granted shall vest in, belong to, and be enjoyed by said company and their successors for the period of ninety-nine years, and the profits thereof shall be divided among the stockholders in proportion to the stock by them respectively held, during which time the stock of said company and the real estate of said company, which may be purchased by them, and connected with, and subservient to their works hereby authorized, shall be exempt from taxation; provided that nothing herein contained shall be so construed as to deprive the general assembly for this state of the right of imposing taxes of dividends and profits, according to the stock of said company, whenever, in their discretion, it may be necessary or expedient; provided, further, that the tax which may be levied on the same shall not be greater than that levied on similar property of this state.”

Section 30 provides for the annual payment to the state treasurer, after the road shall be put in operation, of a bonus (as it is called) of twenty cents per ton for the freight transported, and the same sum for each passenger carried over the road, with a proviso “that nothing herein contained shall be so construed as to prevent any future legislature from imposing an additional tax on freight and passengers; provided, further, that no tax shall be imposed upon said railroad, other than that imposed by this charter, greater than that imposed upon the other railroads in North Carolina, which shall reduce the net profits of said railroad below six per cent. per annum.”

Concurring legislation was adopted in South Carolina, for the construction of so much of the proposed road as lay within the limits of that state, in December of the same year.

On September 13th, 1861, was passed an act professing in its title “to revive and continue in force an act entitled ‘An act to incorporate the Cheraw and Coal Fields Railroad Company,’ ” referring by description and date to the original charter, and making some modifications in its terms. These modifications are, in substance, a reduction of the capital stock from two millions to two hundred thousand dollars; a change in the route so far as to require that it pass within ten miles of instead of by Carthage; an authority given the directors to call for installments of ten instead of one per centum on the subscriptions; forbidding any discrimination against the railroads of this state on freight or passengers, and requiring charges for freight to be the same, agreeably to distances each way; fixing the gauge of the road at 4 feet 8 1/2 inches, so as to correspond with the gauge of the North Carolina railroad, compelling the road to cross the track of the Wilmington, Charlotte and Rutherford railroad at a point not west of the town of Rockingham; declaring its name to be the Cheraw and Coal Fields railroad company; and repeating sections 28 and 30 of the act amended.

On December 21st, of the same year, was passed another amendatory act, with the declared purpose in its title to amend the act of incorporation, referring to it by name and date of ratification, the first section of which substitutes two other commissioners in place of two who are superseded, and the second provides: That the company chartered by said act, when organized, and the president and directors thereof shall, in addition to the powers, rights and privileges granted by said act, have all the powers, rights and privileges, and be subject to the same liabilities, except as otherwise provided for, as are conferred and imposed by the amendments to the charter of the Cheraw and Coal Fields railroad company by an act entitled, &c., referring to that which revives and continues in force the incorporating act.

On May 10th, 1862, an ordinance passed by the state convention, then sitting, repeals the section of the charter (9) which confers the power and directs the mode of proceedings to have condemned lands necessary for the use of the road, when they cannot be purchased of the owner for want of agreement as to the price--adding a proviso, that the road may cross the Wilmington, Charlotte and Rutherford railroad within twelve miles west of Rockingham; that as much money may be...