Collier v. Union Ry. Co.

• Citation: 83 S.W. 155
• Parties: COLLIER et al. v. UNION RY. CO. STATE ex rel. WELLFORD v. SAME.
• Decision Date: 25 June 1904
• Court: Supreme Court of Tennessee

Page 155

83 S.W. 155

COLLIER et al. v. UNION RY. CO.

STATE ex rel. WELLFORD v. SAME.

Supreme Court of Tennessee.

June 25, 1904.

Error to Circuit Court, Shelby County; J. P. Young, Judge.

Condemnation proceedings by the Union Railway Company against W. A. Collier and another. From a judgment for the railroad, defendants bring error. Affirmed.

Action by the state, on the relation of one Wellford, against the Union Railway Company, to vacate and set aside defendant's charter. Bill dismissed, and relator brings error. Affirmed.

Collier & Collier and Carroll, McKellar, Bullington & Biggs, for plaintiffs in error. McFarland & Canada and Wright, Peters & Wright, for defendant in error.

WILKES, J.

This is a proceeding to condemn land for railroad purposes. The defendant company claims to be a railroad corporation chartered under General Incorporation Act 1875, p. 232, c. 142, § 6 (Shannon's Compilation, §§ 2414 to 2425, inclusive), and other sections bearing upon the question of corporation charters and the amendments to these original acts.

Collier and wife defend upon the ground that the charter under which the corporation is organized does not conform to the provisions of the act, and that the act and charter do not authorize the construction of such a road as is being built under it.

Our statutes provide for the formation of corporations by the following general provisions (Shannon's Compilation):

"Sec. 2024. Private corporations may be formed and charters obtained by them in the manner and for the purposes hereinafter provided.

"Sec. 2025. Any five or more persons, over the age of twenty-one, desiring to form a corporation for any of the purposes in this chapter mentioned shall copy the form of charter adopted to the purpose, filling the necessary blanks, and append to the same an application in these words: `We the undersigned apply to the State of Tennessee, by virtue of the laws of the land, for a charter of incorporation for the purposes and with the powers declared in the foregoing instrument. Witness our hands _____ day of ______.'"

Section 2026 provides, in substance, that the instrument, when probated as provided in section 2542, with application, probate, and certificates, is to be registered in the county where the principal office of the company is situated, and also registered in the office of the Secretary of State, and a certificate of registration given by the Secretary of State under the great seal of the state and it shall, when registered in the register's office of said county, with the fac simile of said seal, complete the formation of the company as a body corporate, and the validity of the same in any legal proceeding shall not be collaterally questioned.

The contention is that the provisions of the act must be complied with before the corporation becomes perfect and valid, and, unless they are complied with, the charter is invalid and void.

Section 2412, Shannon's Compilation, provides as follows: "The charter of a railroad or railway company shall be as follows: `Be it known that ______ and ______ are hereby constituted a body politic and corporate by the name and style of (here insert the name) for the purpose of constructing a railway from ______ in the county of ______ to ______ in the county of ______.'"

The charter in controversy was obtained in 1886. An amended charter was obtained in 1902.

The first criticism made is that a charter for any railroad authorized by the act must set forth the termini of the road proposed to be built, and that a charter which specifies only one terminus provides only for a circular route, beginning at and returning to the same point, and is therefore void. And it is insisted that the charter in the present case names no termini such as the act contemplates and requires, or, if it names any, it is only one terminus, which is made the beginning and ending point.

The charter in controversy provides that certain persons (naming them) "are hereby constituted a body politic and corporate by the name and style of the Union Railway Company for the purpose of constructing a railway from some point on or near the present Southwestern limits of the Taxing District of Shelby County, thence Eastward on or near the Southern limits to a point on or near the Southeastern limits of said Taxing District, thence Northwardly on or near the Eastern limits of the Taxing District aforesaid to some point on or near the Northeastern limits of said Taxing District, thence Westwardly on or near the Northern limits of the said Taxing District, thence Southwardly by the most practicable and feasible route to the beginning."

It is insisted that in this description no terminus is named, or, if any is named, there is only one, which is both the beginning and end of the route.

On the other hand, it is contended that the two termini may be in one and the same place, and that there may be any number of termini, and that the charter in question does provide for a number.

There can be no doubt but that it is essential to name the termini of any proposed railroad in its charter, in order to make that charter valid.

The route of a commercial road may be generally, and need not be definitely, stated in its charter. In this respect it differs from a street railway, as is explained in the case of Citizens' Street Railway v. Africa, 100 Tenn. 44, 42 S. W. 485, 878. Hence the form of charter prescribed for commercial railways need not include any description of the route, but only the termini.

In connection with this criticism, it is said that the road which is being constructed under this charter is not such as is authorized by it, but that it is being attempted, under a charter intended for commercial railroads, to construct and operate what is called "a belt line railroad."

The Union Railway Company made various contracts and agreements with the city of Memphis, in which it styled itself "a belt line railway"; and in a petition to the county court of Shelby county on April 19, 1886, it stated that the object of its charter was to authorize the building and operation of what is commonly known as a "belt line railway," to connect the various lines of railways now entering or hereafter to enter into that city, and in its articles of agreement with the city it is stated that its principal object is the building of a belt line in and around said taxing district.

Several officers of the company were ex amined in regard to the character of the road, and in regard to its termini.

Mr. Brinkley, at one time its president, upon being pressed for a direct answer as to whether the road had any terminus, answered: "It has none, or a great many, according to the view you take of it; and you might say it has many termini, and no terminus."

Mr. Flemming, the present president of the road, when asked as to its termini, replied that he knew nothing about it, except the charter; and he proposed to read that in reply to the question. He stated further that there were six different routes; and when asked to give the termini of the road, as indicated in its original charter, he replied: "I don't know. I can give my impression of it."

Mr. Davant, a leading railroad man of Memphis, states that his understanding was that the Union Railway Company was a belt or terminal railway.

To the same effect is the testimony of Mr. Buckingham, one of the directors.

These gentlemen say that, in their view of the matter, the term "belt railway" or "terminal railway" has no particular significance to distinguish it from an ordinary commercial railway.

We think we need not debate the question whether the proposed road is a belt road or terminal road, or not, as counsel for the railway company insists that it is not a belt road or terminal road, as contradistinguished from the road which is authorized by the statute we have referred to, to wit, section 6, c. 142, p. 238, Acts 1875, and its amendments.

The crucial question in the case is whether the road which is being constructed is authorized by the act referred to, and whether its charter conforms to that act, and whether the road conforms or intends to conform to that charter.

It is only such road that is authorized to condemn property for its purposes under the exercise of eminent domain.

We need not, therefore, discuss Acts 1893, p. 15, c. 11, which authorizes the creation of railroad terminal corporations, as the defendant railroad company does not claim any authority or right to act under that law.

The original charter of this company, as before stated, was granted in 1886.

The line of the road along the southern limits of the city was definitely located, and some work had been done upon it soon thereafter. This was done under a contract with the taxing district of Shelby county of date January 7, 1890. No other portion of said route was then specifically located, but the general location was, as described in the charter, on or near the then city limits. The eastern and northern lines were not definitely located.

A second contract was made with the city in November, 1890, but the route was not changed, and remained as originally provided for until the charter was amended in 1902.

In the meantime the city of Memphis had extended its limits far beyond what they were in 1886 and 1890, and the original route designed would have run, not around, but through, the city, and through one of its most populous portions.

The city in 1902 was not willing to permit this, nor were the residents along the route willing to allow it; and a new contract was made that the road should be constructed outside of the eastern and northern limits, as then existing, and also might be extended along the wharf in front of the city, so as to make it a complete road around the city.

It was to meet this changed condition of affairs that the new charter was obtained, locating the line so as to go around the city by extended lines, and reach the initial or beginning...