Memphis City R.R. Co. v. Mayor & Aldermen of Memphis
| Decision Date | 30 November 1867 |
| Parties | Memphis City Railroad Company v. The Mayor and Aldermen of Memphis and People's Passenger Railroad Co., People's Passenger R. R. Co. v. Mayor and Aldermen of Memphis and Memphis City R. R. Co. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM MEMPHIS.
At the _______ Term, 1866, there was a demurrer to the cross-bill of defendants, which was allowed by the Court, and their cross-bill dismissed; from which they appeal. Chancellor Wm. M. SMITH, presiding.MCRAE and J. B. HEISKELL, for Complainants.
KORTRECHT, for Respondents.
The original bill in this case, was filed on the 4th of January, 1866, in the Chancery side of the Common Law and Chancery Court at Memphis. It appears from the record, the complainants are an incorporated company, un der the Act of the Legislature, passed June, 1865, with power to contract, maintain and operate street railroads in the city of Memphis, etc. They organized according to the provisions of the charter, obtained the assent of the corporation to construct ten miles of railroad, let out the contract for the construction; and, after notifying the authorities of its intention to proceed, under its charter, in the construction of the roads, they tendered and offered to the city authorities, a full compliance with the provisions of the Act of Incorporation. They had taken possession of Main Street, as far as was necessary to construct the track without obstructing the travel. The Mayor of the city, by the police acting under his authority, forcibly ejected them from the streets, driving the contractors from their work. The bill, among other things, prayed an injunction against the Mayor and Aldermen, enjoining them from interfering with their operations, or making any contracts with others for street railroads. An injunction was issued according to the prayer of the bill. A few days after the filing of the bill, a petition was filed by a body corporate, under the name and style of the People's Passenger Railroad Company, incorporated by an Act of the Legislature, on the 1st day of February, 1860, in which they aver they are interested in the matters pending between the Memphis City Railroad Company and the Mayor and Aldermen; that they have a direct interest in the result, and are necessary parties, and ask to be permitted to be made defendants, which was ordered by the Chancellor. They filed their answer to the original bill, asking and praying it should be taken as a cross-bill against both of the original parties. It appears from the answer, cross-bill and exhibits, one Henry D. Small, and others, his associates, in 1859, organized themselves into an association, styled “The People's Passenger Railway Company of Memphis; and, under an ordinance passed by the Mayor and Aldermen of said city, on the 20th of November, 1859, in which they invited proposals for building street railways, they made sealed proposals for building and operating the roads specified; which ordinance is as follows:
Be it ordained by the Mayor and Aldermen of the City of Memphis, That the right to construct railroads for the transportation of passengers, exclusively, through the city hereinafter named, by cars, drawn only by horses or mules, is hereby granted, for the period of twenty-five years from the passage of this ordinance, to the parties hereinafter designated by said Board.”
The second section of said ordinance provides: “The right to construct railroads, under the provisions of this ordinance, shall be confined to Main Street, connecting the Mississippi & Tennessee Railroad Depot, with the Memphis & Ohio Railroad Depot, and Auction Square, and other streets that are set forth.” The other sections of said ordinance, provide for the manner in which the track shall be built, the rules and regulations by which the same shall be governed, keeping the same in order, etc., except section 17, which is as follows:
“Sealed proposals shall be received by the Mayor and Finance Committee, for building street railroads, in accordance with this ordinance, until the 29th of November, and the same shall be reported to, and awarded by, this board, at the first meeting thereafter.”
Section 18th provides: “Bids and propositions shall be made for each street, separately, or for the whole; and to the best responsible bidder shall be awarded the road for which he may bid, or for all the roads, if such be the best bid.” Which ordinance was duly published. And afterwards, on the 29th of November, 1859, the Finance Committee, to whom was referred the bids for building the street railways, reported to the board, that they had received bids from various persons, also from Kirk & Small, agents for the People's Passenger Railway Association; that they were, after a careful examination of the opinion, that the bid of Messrs. Kirk & Small, was best for the interest of the city; that a stipulated sum per annum, was preferable to taking a part of the income of the road. The bids were read, as appears from the proceedings; and the proposition of Messrs. Kirk & Small, as agents for the Passenger Railway Association, was, Main and Jefferson Streets, for twenty-five years--the first five years exempt from taxation; the second five years, five per cent. on gross receipts, or, $1,500 per year; the third five years, ten per cent., or, $3,000 per year; the fourth five years, twenty per cent., or $6,000 per year; the fifth five years, thirty per cent., or $15,000 per year.
Upon submitting said proposition, the following resolution was adopted:
“Resolved by the Board of Mayor and Aldermen of the City of Memphis, That the Mayor and City Attorney be authorized to close the contract hereinafter provided, with Messrs. Kirk & Small, and others, to make railways on all streets named in the railway ordinance, and on Auction Street and the Raleigh road, from Promenade to the corporation line--they paying to the city the sum of $1,275, at the time and on the terms named in their proposition; the said terms being required to complete the road on Main Street in four months; the road on Jefferson Street within eight months--all other streets named, within two years, the city reserving the right to contract for the building of other roads on other streets, not named in the ordinance, whenever they choose to do so, the city reserving the right to determine the character of iron used,” etc.
On the 8th of December, 1859, a petition was presented by the property holders of Main Street, against the builders of a railroad, which was rejected. Another resolution at the same meeting, was offered, that Main Street be stricken out of the contract, and Front Street be inserted; which was, also, lost. At the same meeting, the following resolution was adopted:
“Resolved by the Mayor and Aldermen, That the permission of the board is hereby given to the parties to whom has been awarded the contract for city railroads, under ordinances passed Nov. 20, 1859, to have them incorporated by the Legislature of Tennessee; said incorporations in no way to change the conditions and propositions heretofore made and accepted by the parties, respectively; the same being intended to secure the rights and more certainly to preserve the remedy of parties against each other, respectively, in case of any violation of contract hereinafter entered into, and not to prevent an organization and incorporation of another company to build street railways, or any other street improvement, if hereinafter found desirable; provided, however, the said Act of Incorporation shall require the consent of the city of Memphis for the construction of railways. Afterwards, in pursuance of said ordinance, the said Kirk & Small, and their associates, applied to the Legislature, in session at Nashville, and, on the 1st of February, 1850, An Act was passed, incorporating them and their associates, under the name and style of “The People's Passenger Railway Company,” with all the powers incident to incorporations.
Section 4th of said Act, is as follows: “That said company, by their Directors and officers, shall have power to complete and execute all contracts and agreements entered into with said City of Memphis, or other parties, for the use of the streets of said city, or enlarge the terms of the same with said parties; and may operate street railroads, by animal power, on all streets in said city of Memphis, with the consent of said city; may enter into all necessary...
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