"The
plaintiff acquired ownership of the bridge across the
Tennessee river at Florence, Alabama, known as the
'Florence Bridge,' by purchase under decree of
foreclosure of a mortgage executed by the Memphis &
Charleston Railroad Company to the Farmers' Loan &
Trust Company, the said sale and purchase having been made
the 28th day of February, 1898, and was duly confirmed by
the United States court in which the proceeding was
instituted on the 28th day of February, 1898, and the
plaintiff was put in possession of the property. The
mortgage under which this sale was authorized by the
charter of the Memphis & Charleston Railroad Company
included its roadbed, right of way, rolling stock, and all
other real and personal property; also its franchise and
charter. All of this property and right of property was
purchased and acquired by the plaintiff at the said sale
under said decree of foreclosure. One of the franchise
rights conferred by the charter of the Memphis & Charleston
Railroad Company is the following: 'Sec. 23. The said
company may purchase, have and hold any bridge or turnpike
road over which it may be necessary to carry the said
railroad, and when said purchase is made, to hold the said
bridge or turnpike road on the same terms and with all the
rights which belong to the individual, individuals or
corporations from which such purchase may be made: provided
that the said company shall not obstruct any public road
without constructing another as convenient as may be.'
Under the chartered rights and privileges conferred upon
the Memphis & Charleston Railroad Company by this section
of its original charter in the construction of its road
from Tuscumbia, Ala., to Florence, Ala., it purchased from
a corporation known as the Florence Bridge Company, about
the year 1856, what remained of the bridge of the said
Florence Bridge Company which had formerly been constructed
by it across the Tennessee river at that point. What
remained at that time of the bridge of the Florence Bridge
Company were the abutments and a number of stone piers in
the river, the superstructure of the bridge being gone
having been blown away and destroyed by the elements. The
Memphis & Charleston Railroad Company, after this purchase
of these piers or abutments and the franchise of the old
Florence Bridge Company, erected the present bridge on the
same site across the river at Florence, erecting it on the
said abutments and old piers and on new piers which said
Memphis & Charleston Railroad Company erected, putting a
new pier between each of the old piers, and for the
convenience of the persons desiring to cross the river on
foot or in vehicles built the said thoroughfare portion as
part of it. Said bridge was and is constructed as follows
Upon piers and abutments as aforesaid, the upper portion of
said bridge constituting a part of plaintiff's line of
railroad, on which its tracks are laid for the running of
its trains from one side of said river to the other, and
immediately underneath said railroad tracks there is and
was a wagonway or roadway for pedestrians, vehicles, stock
and cattle going from one side of said river to the other,
and for the use of which tolls are and have been (during
the times mentioned herein) charged by plaintiff; said
lower portion of said bridge being conducted and operated
by plaintiff as a toll bridge between the counties of
Colbert and Lauderdale. Said toll bridge portion of said
bridge is built and erected upon the same piers or
foundation as said railroad portion of said bridge, the
tolls collected therefrom amounting to only $4,000 per
annum. The bridge and plaintiff's track in connection
therewith are used by the Louisville & Nashville Railroad
Company, and the Northern Alabama Railway Company for the
passage of their trains, they paying a rental therefor. The
plaintiff has been the owner and in possession of the said
property of the said Memphis & Charleston Railroad Company,
including the said bridge, from the date of confirmation of
said sale up to the present time, using and operating the
said bridge and railroad as hereinbefore stated. This
bridge is on the right of way of the said line of the
railroad from Tuscumbia to Florence, and belongs to the
plaintiff, and the plaintiff is operating it in connection
with its said line. Said bridge crosses the Tennessee
river, which is the dividing line between Colbert and
Lauderdale counties, Alabama. The toll house and toll
keeper are located and the tolls collected by
plaintiff's agent on the Lauderdale side or end of said
bridge. The plaintiff is a railroad corporation engaged in
interstate commerce, its line of railway extending through
Alabama, Mississippi, Tennessee, and other states. The said
railroad part of said bridge is a part of the right of way
of said railroad, and the plaintiff pays a license to the
city of Florence as a railroad engaged in business there.
Said bridge is within two miles of the corporate limits of
Florence, Lauderdale county, Alabama, which, according to
the last federal census, is a town or city of more than
5,000 inhabitants; and is also within two miles of
Sheffield, Colbert county, Alabama, which is a town or city
of less than 5,000 inhabitants.
"On
March 5, 1901, there was approved an act of the General
Assembly of the state of Alabama entitled 'An act to
further amend the revenue laws of the state of Alabama,'
being House Bill No. 1,247, and said act is here now referred
to and made a part hereof, being in Acts 1900-01, p. 2598. On
April 11, 1901, the plaintiff paid to the defendant, as
probate judge of Lauderdale county, Alabama, the sum of
$113.50, being the amount claimed by said defendant and by
the tax commissioner of Lauderdale county, Alabama, to be due
from said plaintiff under provisions of said act, and
especially under subdivision 38 of section 17 thereof, by
reason of its ownership and operation of said portion of said
bridge as a toll bridge; said amount being $75 state license,
$37.50 county license for Lauderdale county, and $1 fee to
the defendant, as probate judge, for the issuance of said
licenses. Said amount was paid by plaintiff under protest, it
having been notified by C. P. Anderson, county tax
commissioner for said county, that, unless license for the
operation of said toll bridge was promptly taken out, and
said amount paid therefor, he would be called upon to begin a
prosecution for the collection thereof. The plaintiff,
through its attorney, stated to defendant at the time said
money was paid to him, and the fact is, that said amount was
paid under protest, and to avert a criminal prosecution, and
that the plaintiff claimed the same to be an unjust and
illegal charge and demand, and that the said Southern Railway
Company reserved the right to sue for the return or recovery
of said sum so paid. At the time of said payment the
plaintiff took a receipt for the money so paid, which recited
the fact that the money was paid for the state and county
licenses for operating said toll bridge, as provided by an
act of the Legislature, referred to, and that said amount was
paid under protest. Said bridge is on a branch of railroad
about four miles in length, extending from Tuscumbia,
Alabama, to Florence, Alabama, in the counties of Lauderdale
and Colbert, and connects with plaintiff's main line of
road at Tuscumbia. The act of incorporation of said Florence
Bridge Company was approved January 12, 1832, and is in Acts
of Alabama of 1832, pp. 59-61.
"The
General Assembly of Alabama, by a subsequent act, further
regulated the charges allowed for tolls on said bridge (see
Acts 1894-95, p. 375), and subsequently, by agreement between
the Southern Railway Company and the citizens of Florence
said act was amended (see Acts 1898-99, p. 774). The charter
of...
