Commonwealth v. Mobile & O.R. Co.

• Decision Date: 27 September 1901
• Citation: 64 S.W. 451
• Parties: COMMONWEALTH v. MOBILE & O. R. CO. [1]
• Court: Kentucky Court of Appeals

64 S.W. 451

COMMONWEALTH v. MOBILE & O. R. CO. ^[1]

Court of Appeals of Kentucky.

September 27, 1901

Appeal from circuit court, Carlisle county.

"To be officially reported."

The Mobile & Ohio Railroad Company was found not guilty of the offense of failing to become a resident corporation, and the commonwealth appeals. Affirmed.

Robt. J. Breckinridge, for the Commonwealth. Lansden & Leek Saffold Berney, and Shelbourne & Kane, for appellee.

O'REAR J.

Appellee Mobile & Ohio Railroad Company, was incorporated by the state of Alabama February 3, 1848, with the usual powers and privileges, looking to the construction of a line of railway from Mobile, Ala., to some point on the Ohio or Mississippi river. On the 26th day of February, 1848, the legislature of this state passed the following enabling act: "An act to authorize the Mobile and Ohio Railroad Company to extend their railroad from the south boundary line of the state of Kentucky to the Mississippi or Ohio rivers.

"Section 1. Be it enacted by the general assembly of the commonwealth of Kentucky, that the Mobile and Ohio Railroad Company, when formed, under the act of the general assembly of the state of Alabama, approved February 3, 1848, entitled, 'An act to incorporate the Mobile and Ohio Railroad Company,' shall be allowed the privilege of making a necessary reconnoissance and survey, for the purpose of ascertaining the most eligible route for extending their Mobile & Ohio Railroad to any point upon the Mississippi or Ohio rivers, in this state.

"Sec 2. That as soon as said route and point shall be ascertained, the said Mobile and Ohio Railroad Company shall be allowed the right of way for the extension and construction of their said railroad, from the Tennessee line to the Mississippi or Ohio rivers; and that they shall be entitled to all the privileges, rights and immunities, and subject to all such restrictions as are granted, made and prescribed, for the benefit, government and direction of said Mobile and Ohio Railroad Company, within the state of Alabama, by the act above described." Acts 1847--48, c. 392.

The company was formed under the charter granted by the parent state, and did build and operate thereunder its road from Mobile through Alabama, Mississippi, Tennessee, into and through Kentucky, and Illinois to St. Louis, Mo. Appellee has been operating its line of railroad under the legislative grants above named from 1848 to the present time, although a portion of its road in Kentucky, from South Columbus to East Cairo, a distance of some 20 miles, was built since 1856, and along the line of way proposed for the Kentucky & Tennessee Railroad Company, incorporated by the legislature of this state February 28, 1870. The charter privileges of the latter company seem to have been acquired by appellee by permissive provisions of both the charters of appellee and of the Kentucky & Tennessee Railroad Company. Section 841, Ky. St., which became a law July 12, 1893, provides as follows: "No company, association or corporation created by, or organized under, the laws or authority of any state or country other than this state, shall possess, control, maintain or operate any railway, or part thereof, in this state until, by incorporation under the laws of this state, the same shall have become a corporation, citizen and resident of this state. Any such company, association or incorporation may, for the purpose of possessing, controlling, maintaining or operating a railway or part thereof in this state, become a corporation, citizen and resident of this state by being incorporated in the manner following, namely: By filing in the office of the secretary of state, and in the office of the railroad commission, a copy of the charter or articles of incorporation of such company, association or corporation, authenticated by its seal and by the attestation of its president and secretary; and thereupon and by virtue thereof, such company, association or corporation shall at once become and be a corporation, citizen and resident of this state. The secretary of state shall issue to such corporation a certificate of such incorporation." Appellee continued to operate its road in Kentucky after the passage of the foregoing act, and, failing to incorporate under the laws of this state, it was indicted and tried in the Carlisle circuit court in November, 1900, for the alleged violation of the provisions of this act. The circuit court found the defendant not guilty, and the commonwealth has appealed.

Following is the judgment rendered by the circuit court: "This cause coming on for trial, the defendant entered a motion to dismiss the indictment for the following reason: That sections 841, 842, Ky. St., on which this indictment is based, are unconstitutional. And for the purpose of trying the constitutional question the facts were agreed and written, and were filed, and Exhibits A, B, C, D, and E filed as evidence, the same specified in agreement of facts, and, jury was waived, and cause submitted to the court on the agreed facts, whereupon the court held that section 841 did not apply to defendant company, or, if it did apply to defendant company, that it was unconstitutional, in that it impairs the obligation of the grant of the Kentucky general assembly to the M. & O. R. R. Co., approved February 26, 1848, and, so far as that company is concerned, that it is a regulation of commerce among the states; and therefore the indictment is dismissed, to all of which the commonwealth objects and excepts, and prays an appeal, which is granted."

It was the contention of appellee on the trial below, and is its argument here, that the act of February 26, 1848, quoted above, constituted a contract between the state of Kentucky and the Mobile & Ohio Railroad Company; that, therefore, in so far as the provisions of section 841, Ky. St., passed subsequent to February, 1848, imposed additional conditions upon, or in any wise altered the provisions of, the original grant to appellee, it was not applicable to this company, or, if applicable, such provisions were contrary to the provisions of section 10, art. 1, of the constitution of the United States. It was and is further urged by appellee that, its business being admittedly the carrying of commodities and passengers between and among two or more of the states, it was interstate commerce, and that section 841 is an interference with said interstate business, and violates the third clause of section 8, art. 1, of the constitution of the United States. It is again argued for appellee that section 841 violates the fourteenth amendment of the constitution of the United States, in that it denies to foreign railroad companies in Kentucky the equal protection of the laws.

What was the nature of the grant, or, rather, the legal character and effect of the act of legislature of February 26, 1848 conferring certain privileges upon appellee corporation? The position assumed in argument for the commonwealth by the attorney general is that the act "is neither a charter, a contract, nor a grant, but is only a license." It is not claimed by appellee that the act is a charter, as that term is generally applied in law. And it argues that "contract" embraces both "grant" and "license." It is to be observed that the Kentucky legislature, by the act in question, in the very title of it, stated the purpose of the act, viz.: "An act to authorize the Mobile and Ohio Railroad Company to extend their railroad from the south boundary line of the state of Kentucky to the Mississippi or Ohio rivers." It may be assumed that both the legislature of Kentucky and the railroad company regarded the permission of the state to construct and operate the railway through its territory to be necessary. This act was to grant to the railroad company that consent, and to impose the terms upon which the privilege...