State v. Mobile, J. & K.C.R. Co.

• Decision Date: 26 June 1905
• Citation: 86 Miss. 172,38 So. 732
• Parties: STATE OF MISSISSIPPI ET AL. v. MOBILE, JACKSON & KANSAS CITY RAILROAD COMPANY
• Court: Mississippi Supreme Court

38 So. 732

86 Miss. 172

STATE OF MISSISSIPPI ET AL. v. MOBILE, JACKSON & KANSAS CITY RAILROAD COMPANY

Supreme Court of Mississippi

June 26, 1905

FROM the chancery court of Pontotoc county, HON. WILLIAM J. LAMB Chancellor.

The state of Mississippi and the Mississippi Railroad Commission the appellants, were complainants in the court below; the railroad company, the appellee, was defendant there. From a decree in defendant's favor, dissolving an injunction the complainants appealed to the supreme court. The facts are fully stated in the opinion of the court.

Section 187, of the constitution, is as follows: "No railroad hereafter constructed in this state shah pass within three miles of any county seat without passing through the same and establishing and maintaining a depot therein, unless prevented by natural obstacles; Provided, Such town or its citizens shall grant the right of way through its limits, and sufficient grounds for ordinary depot purposes."

Decree reversed and cause remanded.

J. N Flowers, assistant attorney-general, for appellants.

1. That the consolidated corporation and its lessee are bound to preserve and maintain intact the original narrow-gauge line extending into the town of Pontotoc to the old depot site. We contend that this is the law regardless of sec. 187 of the constitution and regardless of any statutory laws of this state. Lusby v. Railroad Co., 73 Miss. 360; Ewing v. Railroad Co., 68 Miss. 551; Railroad Co. v. Devaney, 49 Miss. 555; Leverett et al. v. Middle Ga. Ry. Co., 96 Ga. 385; Works v. Railroad Co., No. 18046 Fed. Cas.; People v. Railroad Co. 45 Barb., 73; Mason v. Railroad Co., 35 Barb., 373; Little Miami Railroad Co. v. Naylor, 2 Ohio St., 236; Moorehead v. Railroad Co., 17 Ohio 340; People v. Railroad Co., 120 Ill. 48, 65; Woods, Railroad Law, vol. 2, pp. 752, 950; 3 Elliott on Railroads, sees. 929 and 930.

2. That under sec. 3599 of the code the narrow-gauge line is to be treated as an established line, and the railroad company controlling it has no power to move it without the consent of the railroad commission; that under sec. 4302 the building of the new line necessitates the establishment of a new depot and a change of location, and that this cannot be done without the consent of the railroad commission, as provided by the latter part of said section. Code 1892, § 3599; Code 1892, § 4302; State v. New Haven & Northampton Co., 37 Conn. 153.

3. That independently of the laws of the state and the general laws, the consolidated corporation and its lessee are bound, under the stipulations in its petition presented to the railroad commission for said body's consent to the consolidation, to maintain intact the said narrow-gauge line and broaden and standardize it throughout its entire length and make it a part of the main new line extending from Decatur, Mississippi, to Jackson, Tennessee. Railroad Co. v. Railway Co., 83 Miss. 746.

4. That if the line by Pontotoc is to be treated as an established line, it must be built where the old line was built; if it is to be treated as a new line to be located, then sec. 187 of the constitution must be complied with and the new line must be run through the original town of Pontotoc, if the citizens of Pontotoc, as they have offered to do, will perform their part under the said sec. 187 of the constitution. Marengo County et al. v. Matkin et al., 32 So. 669.

5. That in any event the decree of the chancellor is wrong in that it does not decide any question upon the solution of which our right to relief depends, but undertakes to dissolve the injunction for other reasons not proper to be considered in this controversy.

R. V. Fletcher, on same side.

There are two important questions involved in this case:

First--Is sec. 187 of the constitution applicable to the facts of this case?

Second--Is the railroad company bound by the stipulations of the petition asking for permission to consolidate?

Section 187 of the Mississippi constitution provides that no railroad to be hereafter constructed shall pass within three miles of a county seat without passing through the same, unless prevented by natural obstacles, provided the municipality or its citizens will give the right of way and depot grounds. The facts of this case show beyond cavil that this particular railroad is being constructed and operated within less than one mile of the county seat and that it does not touch the county seat. It appears further that there are no natural obstacles, and that the citizens stand ready and willing to donate a sufficient right of way and ample depot grounds. These facts being established, the case seems clear.

In the first place, it is not pretended that the line of defendant's railway at any point touches the county seat of Pontotoc county, as the same was established by the legislature and declared to be the county seat of Pontotoc county. It is true that the line passes through a portion of the extended corporate limits of the town of Pontotoc. But this extension was made effective in 1903, after the depot was located and established, and the annexed area is no part of the county seat. There is absolutely no conflict of authority upon the proposition that an extension of the corporate limits of a municipality does not serve to extend the boundaries of a county seat. The county seat is established for county purposes, and has no connection with any municipal corporation. It need not be a part of an incorporated village or town, and often is not. It does not depend upon, nor is it affected by, any action of the municipal authorities in extending or contracting the corporate limits of the town, city, or village in which it may chance to be situated. This is clearly expressed, and all the authorities are collated and considered in the Marengo county case, decided in Alabama, 32 So. 669. This should be conclusive upon the proposition that the extension of the corporate limits of a municipality does not serve to extend the area of a county seat.

But it may be contended that appellees are in no attitude to invoke this constitutional provision because the town of Pontotoc or the citizens thereof have not provided a right of way through the town and sufficient grounds for ordinary depot purposes. It may be contended that this is a precedent condition, and that it must be shown affirmatively that it has been complied with before the railroad company can be considered as being in default. It will be noted that the bill charges a readiness on the part of the citizens of the town of Pontotoc to supply these things, Further, a number of the citizens state on oath that they are ready to furnish the right of way and depot grounds.

But the testimony of the locating engineer for the defendant company shows that no route has ever been surveyed through the county seat, none ever considered, no demand made by the railroad company, no site selected, and the citizens have never been in a situation to tender or offer a right of way or depot grounds to the railroad company. On the other hand, there has been a continued and persistent refusal on the part of the railroad company to even consider or talk about any other line, or any other depot site, than the one actually selected. It is an elementary principle of law of contracts that if the performance of a necessary condition is incumbent on one party, an absolute refusal of the other party to accept it excuses the obligated party from performing the condition. Thus it has been said:

"One of the two parties should not be required to tender performance when the other has by act or word indicated that he will not or cannot accept it, or will not or cannot do that in return for which the performance was promised." 9 Am. & Eng. Ency. Law, 641, par. 5.

This states the attitude of the instant case exactly. That this is the correct view can be seen by considering the situation of the parties and the subject-matter of the thing to be offered or tendered. The railroad company alone could intelligently say what route through the county seat should be selected. They alone could be competent to judge of its practicability and suitability. The citizens might tender the right of way along a route that to their untechnical eyes might appear perfectly feasible and practicable, and yet it might not be suitable to the purposes of the road. Indeed, it would be no violent assumption to say that in the case at bar the defendant company would not be easy to please in this matter. When the.citizens have offered at every opportunity to furnish a right of way and suitable depot grounds, and the railroad company has refused to select a route and has insisted that under no circumstances would they locate their line of railway through the county seat, certainly the people of the town will be excused from doing so vain a thing as making a formal tender of some particular right of way.

But it may be argued that the old depot site is not itself within the limits of the county seat. It is true that all the grounds are not, but a part of them is. It must be remembered that this is not a controversy between the old depot site and the new. The question is, Shall sec. 187 of the constitution be complied with? Whether the old depot site shall be retained or abandoned is not involved in this particular case. Besides, the maps and plats filed as exhibits in this case show that the old depot property is partly within the county seat limits, and that by making a slight alternation in the location of the depot the constitution can be obeyed without serious consequences or inconvenience to the company.

It is the contention of appellants that the said railroad company has violated the very condition of its existence in abandoning and refusing to...