Louisville, New Orleans & Texas Railway Co. v. Blythe

• Decision Date: 23 May 1892
• Citation: 11 So. 111,69 Miss. 939
• Parties: LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO. v. WILLIAM W. BLYTHE ET AL
• Court: Mississippi Supreme Court

11 So. 111

69 Miss. 939

LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO. v. WILLIAM W. BLYTHE ET AL

Supreme Court of Mississippi

May 23, 1892

April 1892

FROM the circuit court of DeSoto county, HON. JAMES T. FANT Judge.

The case is stated in the opinion.

Reversed and the cause remanded.

Mayes &amp Harris, for appellant.

Without particularizing the several sections of the constitution, which, it is claimed, the power sought to be vested in the guardian violates, we submit that the legislature, as parens patriae, is vested with the power to protect citizens under disability. For a learned discussion of this subject, see 2 Story, Eq. Jur., § 1333; 10 Am. Jurist, 297. The latter is quoted with approval in Williamson v. Williamson, 3 Smed. & M., 715.

In England the power of parliament in such matters is upheld and justified on two grounds--(1) the special relation between the sovereignty and disabled subjects; (2) the reserved prerogative in government to provide for emergencies and intolerable complications. See 20 Wend., 436 and cases cited.

In America the doctrine is discussed and announced in 2 Peters, 627; 10 Ib., 294; 16 Ib., 25; 9 Wall., 295; 103 U.S. 613; 1 Story, 427; 12 Ala. 369; 4 Monroe, 91; 6 B. Monroe, 594; 10 Ib., 495; 15 Wend., 436; 20 Ib., 365; 19 N.Y. 460; 14 S. & R., 435; 2 Barr, 277; 31 Pa. 17; 16 Mass. 326; 7 Metc., 388; 3 Cush. (Mass.), 483; 11 Gill & Johns., 87; 33 Mo. 13; 47 Ib., 205; 56 Ib., 211; 16 Ohio 251; 6 R.I. 296; 5 Ill. 127; 8 Blackf., 10; 51 Cal. 352; 18 Ark. 469; Cooley, Con. Lim., 117-122. And, in our state, Williamson v. Williamson, supra; McComb v. Gilkey, 29 Miss. 146; Boon v. Bowers, 30 Ib., 246.

The foregoing authorities establish the following propositions:

1. There is no constitutional requirement that the property of an infant shall be inseparably linked to him until his majority. His property may be alienated under various conditions--in his support and education, in discharge of antecedent obligations, for better investment, for the furtherance of the public good, etc.

2. The duty and power to regulate the whole matter is a ministerial function of the legislature. It has the right to depute this function to a court, but is not bound to do so.

3. It is for the legislature to determine when the emergency arises which demands action. It is a question of policy, and not a question of power in the legislature.

4. The legislature may invest the appointee of the power with discretion in the premises.

The provision is not unconstitutional because it authorizes a release by the guardian. An adult may waive his right to compensation in money; and the legislature may authorize a guardian to do the same. He is not required to waive it; he is only empowered to do so. 11 Ark. 469; Cooley, Con. Lim., 214, 693.

The charter does not authorize the property of the ward to be taken for public use without due compensation. This is not a case of actual exercise of the right of eminent domain, and divestiture of title thereby, but of contract or grant made between parties. Levee Commissioners v. Dancy, 65 Miss. 335.

The provision of the constitution which confers full jurisdiction on the chancery court in minors' business, is not infringed. Blake v. McCarthy, 56 Miss. 654.

Morgan & Buchanan, for appellees.

The legislature did not intend to vest in the guardian authority to permit the railroad company to enter upon and take the lands of the wards. That right could only be acquired by condemnation according to the preceding section of the act. The legislature could not lawfully dispense with condemnation. Levee Commissioners v. Dancy, 65 Miss. 335.

Private property can be taken for public use only in three ways: (1) By grant from the owner; (2) by adverse possession, allowing enough to bar the owner; (3) by a condemnation followed by compensation. Appellants did not obtain the land in controversy by either of these methods.

The statutory provision in this case gives the guardian power to waive compensation for his ward's land. Appellants have not shown that they are successors to the right of the New Orleans, Baton Rouge, Vicksburg & Memphis Railroad Company in the premises. This being true, the grant to it, if valid, is that of an outstanding title, and defendant cannot set it up. Griffin v. Sheffield, 38 Miss. 359.

The act of 1882 (Laws, p. 1011), provides that the company to be formed by consolidation shall possess all the rights "which are now possessed by the companies" entering into such consolidation. This act was passed March 3, and on the 9th of March the New Orleans, Baton Rouge, Vicksburg & Memphis Railroad Company was incorporated. It is clear, then, that the latter company, not being in existence at the time the former statute was passed, did not possess any of the rights. Not having acquired such franchises, the appellant company did not carry such rights into the consolidated company formed under the amendatory act of 1884.

The provision of the statute in question is in conflict with the constitution, in that it deprives the ward of his property without due process of law, and because it is a usurpation by the legislature of judicial power, inasmuch as the chancery court is given by the constitution full jurisdiction in minors' business. In support of this view, see Brown v. Levee Commissioners, 50 Miss. 468; Jones v. Perry, 10 Yerger, 59; Lane v. Dorman, 3 Scam., 238; 28 Pa. 34.

Argued orally by Edward Mayes, for appellant, and A. S. Buchanan, for appellee.

FRANK JOHNSTON, Special Judge. HON. T. H. WOODS, owing to enforced absence, did not participate in this decision.

OPINION

FRANK JOHNSTON, Special Judge.

On the 15th day of May, 1884, Mrs. Blythe, as the guardian of her two minor children, conveyed by deed the right of way through the lands of her wards, to the New Orleans, Baton Rouge, Vicksburg & Memphis Railroad Company, the consideration expressed in the deed being for the sum of one dollar, and the further condition that the grantee, the railroad company, should establish and maintain a depot and section-house and tank on the land.

The minors owned the land in common with Mrs. Blythe, their mother, and three other adult tenants in common, all of whom joined in the conveyance to the railroad company.

The second section of the charter of the New Orleans, Baton Rouge, Vicksburg & Memphis Railroad Company (Laws 1882, p. 920), after providing that the company could own a right of way acquired by purchase, grant or devise, and also the mode and manner by which the right of way could be taken by Condemnation proceedings, concludes with the following provision: "When any land, to be taken for the purposes aforesaid, shall belong to any infant, non compos or insane person having a resident general guardian, such guardian may agree with said company upon the amount of damages to be paid for taking such lands, or release to said company his claim or right to damages in the premises." This charter was granted on March 9, 1882.

In 1870 the Memphis & Vicksburg Railroad Company was incorporated. By an act of March 3, 1882, the Memphis & Vicksburg Railroad Company was authorized to consolidate with the Mississippi Valley & Ship Island Railroad Company, and these to consolidate with any other companies, the consolidated company to enjoy all the rights and franchises conceded to the different companies entering into the consolidation. This act was amended by the act of March 15, 1884, so as to permit the Memphis & Vicksburg Railroad Company to consolidate with any other companies, whether the Mississippi Valley & Ship Island Railroad Company became a party to the consolidation or not.

In August, 1884, under the authority of these statutes, the Memphis & Vicksburg Railroad Company, the New Orleans, Baton Rouge, Vicksburg & Memphis Railroad Company, the New Orleans & Mississippi Railroad Company and the Tennessee Southern Railroad Company were consolidated, under the name of the Louisville, New Orleans & Texas Railway Company, this appellant.

The grantee in the deed of May 15, 1884, took possession of the land conveyed as the right of way, fenced the line, constructed its road, and established the depot, section-house and tank, which have, since the consolidation, been maintained by the appellant. In a word, up to the present time, the conditions of the deed have been performed.

Some time after the execution of the deed, Mrs. Blythe died, and the appellee, J. A. Jordan, was appointed guardian of the two minors, who brought the present ejectment suit against the appellant for the recovery of the two-fifths undivided interests of his wards in the land conveyed by their former guardian.

The plaintiffs as well as the defendant in the suit claim through G. L. Blythe, deceased, the father of these minors, as the common source of title, and the question of title involved in the controversy depends alone upon the validity of the deed made for the minors by their former guardian on May 15, 1884.

The circuit court refused to grant a peremptory instruction directing the jury to find a verdict for the defendant, and, upon a verdict in favor of the plaintiff, the court rendered a judgment for the property and $ 250 damages by way of mesne profits, and thereupon this appeal was taken by the railroad company.

It is contended by counsel for the appellees that the appellant did not acquire the privilege or right conferred by the second section of the act of March 9, 1882, upon the New Orleans Baton Rouge, Vicksburg & Memphis Railroad Company, for the reason that the statute authorizing the consolidation of the Memphis & Vicksburg Railroad Company with other companies was passed on March 3, 1882, six days prior to the incorporation of the New Orleans, Baton...