Louisville & N.R. Co. v. State

• Decision Date: 21 November 1907
• Citation: 45 So. 296,154 Ala. 156
• Parties: LOUISVILLE & N. R. CO. v. STATE EX REL. GRAY.
• Court: Alabama Supreme Court

45 So. 296

154 Ala. 156

LOUISVILLE & N. R. CO. v. STATE EX REL. GRAY.

Supreme Court of Alabama

November 21, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Quo warranto by the state of Alabama, on the relation of Henry B Gray against the Louisville & Nashville Railroad Company. From a judgment of ouster, defendant appeals. Reversed and rendered, and remanded.

Gregory L. Smith, Tillman, Grubb, Bradley & Morrow, and George W Jones, for appellant.

Phares Coleman and S. H. Dent, Jr., for appellee.

DENSON J.

On account of the difficult questions which are presented for consideration by this record, as well as the vast importance of the cause itself, the writer approaches the task of preparing the opinion with great diffidence. However, counsel on both sides have ably argued the cause at the bar, and have shown considerable industry and marked ability in briefing it. This has been most helpful to us, and for it all we make grateful acknowledgment.

The action is one in the nature of quo warranto, brought by the state of Alabama, on the relation of Henry B. Gray, against the Louisville & Nashville Railroad Company. The information after showing that the South & North Alabama Railroad Company was incorporated or chartered in 1854 by a special act of the General Assembly of Alabama for the purpose of constructing, maintaining, and operating a railroad within the state of Alabama between Montgomery and Decatur, and after showing that the Louisville & Nashville Railroad Company is a foreign corporation organized under and by virtue of the laws of the state of Kentucky, and is doing business in the city and county of Montgomery, Ala. charges in a single paragraph, as follows: "Third. That at the time of filing this information or complaint, and for many years prior thereto, the said Louisville & Nashville Railroad Company, being such foreign corporation, is exercising and has exercised the franchise or franchises granted by the General Assembly of the state of Alabama to the said South & North Alabama Railroad Company under and by virtue of the said act hereinabove referred to granting said charter, or is exercising the franchise or franchises of running a railroad and collecting tolls for the same between Montgomery, Ala., and Decatur, Ala., without any warrant or authority of law whatever; that in so operating said railroad or exercising said franchise or franchises it is and has been unlawfully and without authority of law using, enjoying, and usurping the rights, privileges, and franchises granted by the General Assembly of the state of Alabama to a domestic or resident corporation, to wit, the South & North Alabama Railroad Company, or has been using, enjoying, and usurping a franchise or franchises which have not been granted to any person or persons by the state of Alabama; that in the use, enjoyment, or usurpation of said rights, privileges, and franchises the said Louisville & Nashville Railroad Company, being a foreign corporation as aforesaid, is engaged in doing those things that are unauthorized by the laws of the state of Alabama, and which are unlawful under the laws of the state of Alabama, and is exercising and has exercised a privilege or privileges, franchise or franchises, within the state of Alabama, without any warrant or authority of law." The prayer of the information is that "a writ of quo warranto or other appropriate writ be directed to the Louisville & Nashville Railroad Company, commanding it to appear and show under what warrant or authority of law it exercises the franchise or franchises of operating and maintaining a railroad in the state of Alabama between Montgomery and Decatur, and to show cause, if any it can, why it should not be ousted therefrom." A further prayer is for judgment against the Louisville & Nashville Railroad Company, "and that it be declared not entitled to the use, enjoyment, or exercise of the franchise or franchises which have heretofore been granted by the General Assembly of the state of Alabama to the South & North Alabama Railroad Company, or to exercise the franchise or franchises to maintain and operate a railroad within the state of Alabama between Montgomery and Decatur, and that the Louisville & Nashville Railroad Company may be ousted from the use and exercise of the said franchise or franchises."

This information is attacked by demurrer, and the relator (appellee) insists that, the proceedings having been instituted for the purpose of ousting the respondent from usurpation, and not for the purpose of forfeiting a charter, the information constitutes no part of the pleadings; that it is not intended to tender an issue of fact, but its office is simply to furnish the court the information in reference to the alleged usurpation; and, therefore, that it cannot be the subject of attack by demurrer. Whatever may have been the common law in respect to this contention, our statutory system in respect to quo warranto proceedings has supplanted the common law, and constitutes "the only system of laws now obtaining in this state touching the remedy of quo warranto, or information in the nature of quo warranto; and a quo warranto proceeding which does not meet the statutory requirement as to parties and procedure cannot be maintained." State ex rel. Fitts v. Elliott, 117 Ala. 172, 23 So. 43; State ex rel. Johnson v. Mayor, etc., 142 Ala. 661, 38 So. 802; State ex rel. Johnson v. Southern B. & L. Asso., 132 Ala. 50, 31 So. 875. Our system of laws in regard to quo warranto is contained in chapter 94 of the Code of 1896 (sections 3417-3439, pp. 966-970). It seems, from a study of the system, too clear for argument that the information or complaint must be regarded, under the statutes, as the first step in the pleadings--as a part of the pleadings. State ex rel. Johnson v. Southern B. & L. Asso., supra. Neither of the sections composing chapter 94 makes any distinction in the proceedings, whether the action be commenced for forfeiture or for usurpation; and we find that section 3428 prescribes: "The complaint [information] in such action must concisely and clearly set forth the act or omission complained of." It was within legislative competency to prescribe this rule, and, not having shown any distinction in this respect between actions for forfeiture and actions for usurpation, the courts are not authorized to draw any, but should apply the rule to all informations alike. It follows that the information must be regarded as pleading, and may be the subject of demurrer for failure to comply with the requirements of the statute.

The point is made by the demurrer that the information is indefinite and uncertain as to what franchise or franchises the defendant has been using, enjoying, and usurping. There can be no doubt that the information alleges conclusions of law and fact as constituting the offense or usurpation on the part of the defendant; and, while this form of pleading may ordinarily be permissible under our system, it will be observed that the acts alleged to have been, and as being, committed by the respondent, and which are relied on as constituting usurpation, are set forth in the alternative. In other words, the relator shifts his right of action from one ground to another in the same count. He states several acts of usurpation in the alternative or disjunctive, "so that it is impossible to say upon which of the two or more substantive averments he relies for the maintenance of his action." Again, there is confusion and obscurity as to the ground upon which the relator bases his cause of action, or of what he would have the respondent ousted, so that the respondent is not clearly informed of the matter to be put in issue. Highland, etc., R. R. Co. v. Dusenberry, 94 Ala. 413, 419, 10 So. 274. It is not objectionable to rely on two or more grounds of usurpation in one information; but each ground should be stated in a separate count or paragraph, in order to attain that perspicuity and certainty which is required by the statute in such proceedings. Code 1896, § 3428. As is said in the case last cited above: "Inextricable confusion of issues would result from the blending in one count of a number of distinct breaches of duty as independent grounds of recovery, to be chosen from and relied on at the election of the plaintiff." And in State ex rel. Johnson v. Southern B. & L. Ass'n, 132 Ala. 50, 54, 31 So. 375, a quo warranto proceeding, it seems to be strongly intimated if not directly held, that the rule in respect to clearness or precision of statement in pleading should, on account of the requirement of the statute (section 3428), be more strictly applied to information than to pleadings in ordinary cases. The demurrer on the ground under discussion should have been sustained. L. & N. R. R. Co. v. Duncan & Orr, 137 Ala. 454, 34 So. 988; Southern Ry. Co. v. Bunt, 131 Ala. 591, 32 So. 507; Richmond, etc., Railroad Co. v. Weems, 97 Ala. 270, 12 So. 186.

The other point made by the demurrer to the information, and which is pressed upon our attention here, is "that the operation of a railroad in Alabama by a foreign corporation having the power under its charter to operate railroads in Alabama, after said corporation has complied with the laws of Alabama authorizing foreign corporations to do business in Alabama, is not the exercise of such a franchise as gives this court jurisdiction to try its right thereto by quo warranto proceedings, and said petition does not allege that the defendant is without such charter power, nor that it has not complied with the laws of Alabama authorizing foreign corporations to do business in Alabama." It is sufficient to say of this ground of demurrer that the information avers that the...