Georgia Pacific Railway Co. v. Wilks , 86 Ala. 478 ( 1888 )

STONE, C. J.

The Georgia Pacific Railway Company is a consolidation of five other railroad corporations, two of which had been partially constructed, while the remaining three are not shown to have been commenced. The GreenAdlle, Columbus & Birmingham Railroad Company was incorporated in the State of Mississippi. Its bearing was eastward. It had made some progress towards construction. The Columbus,. Eayette & Decatur Railroad Company had its bearing north-eastward. This was an Alabama corporation. These two companies consolidated, merging the former in the latter; and retaining the latter’s corporate name.

Two corporations, one in Georgia and the other in Alabama, were incorporated, each having the same name — the Georgia Pacific Bailroad Company. Each pointed westward; one from Atlanta, Georgia, towards the Alabama line, and the other from that line towards Birmingham, Alabama. It is reasonable to suppose that these two roads were intended to run in connection and continuation. These two roads consolidated, and the former sold out to the latter, and thus became an Alabama corporation, retaining the name — the Georgia Pacific Bailroad Company.

Another company, incorporated in Alabama as the Alabama Transit Company, had changed its name to that of “Elyton and Aberdeen Bailroad Company.” — Acts of 1869-70, p. 299. The bearing of this road was westward, from a point near Birmingham, and pointing to-Mississippi, north of Columbus. These several roads — the Columbus, Fayette & Decatur, the Elyton & Aberdeen, and the Georgia Pacific — then consolidated into one railroad, and took the corporate name, the Georgia Pacific Bailway Company. The agreement to consolidate, and the incorporation pursuant to such agreement, recited that it was “proposed to form a new consolidated company, for the purpose of constructing, owning and operating a continuous line of railroad, from Atlanta, in the State of Georgia, through the States of Alabama and Mississippi, to some point on the Mississippi Biver in the latter State.” This act of consolidated Incorporation was perfected about the close of the year 1881, under the act approved March 8, 1876 — Sess. Acts, 249; Code of 1876, §§ 1821 et seq. — and, prima facie, the corporation could exercise only the rights which that act conferred. We consequently held, when this case was formerly before us — 79 Ala. 180 — that without an express grant of power, the railroad corporation could not acquire or recover an interest in lands, which was neither necessary nor proper in carrying out the purposes of the corporation. We sustained the demurrer to the bill, holding that for want of power in the corporation it could not maintain the suit for specific performance.

In the court below after the reversal, the bill was amended, and the acts of incorporation of some of the constituent roads were set out. Among them is that of the Alabama Transit Company, incorporated in 1869, under the general law, approved December 29, 1868. — Sess. Acts, 462. This act of incorporation was amended by special statute, approved March 3, 1870. — Sess. Acts, 299. Its provisions are, “that the name and style of the Alabama Transit Company shall be changed to that of the Elyton & Aberdeen Railway Company, and under that corporate name said company may sue and be sued, and shall have all the rights and privileges, and be subject to all the liabilities imposed by the act authorizing the creation and regulation of railroad companies in the State, under which act said Alabama Transit Company was organized.”

■ The general statute of December 29, 1868, under which the Alabama Transit Company was incorporated, conferred on companies incorporated under it power to “acquire, by purchase or gift, any lands in the vicinity of said road, or through which the same may pass, so far as may be deemed convenient or necessary by said company, to secure the right of way, or such as may he granted to aid in the construction of said road, and the same to hold or convey in such manner as the directors may prescribe.” - The italics are our own. Railroads incorporated under this statute evidently had the power to receive, hold and dispose of property, real and personal, given or granted to aid in their construction. The Elyton & Aberdeen Railroad Company had this right and power when it consolidated with, and merged into the Georgia Pacific Railway Company. It had acquired the power under the act of 1868, and the power was emphasized and confirmed by the special statute changing its name. Being a property-right, presumably of pecuniary value, we must infer it was, to some extent, a consideration and moving inducement in the grant and acceptance of the charter. The repeal of part of the act approved December 29, 1868, by the latter enactment approved March 8, 1876 — Sess. Acts, 249 — did not, and could not, take away this vested right from railroad corporations, which had obtained charters under the older statute before its repeal by the later enactment. — 1 Brick. Dig. 402, §§ 8, 9, 14; 3 Ih. 158, §§ 38 et seq.j Thorington v. Gould, 59 Ala. 461.

In 1871, the Columbus, Ea.yette & Decatur Railroad Company was also incorporated under the general law of December 29, 1868, and during the same year the legislature of Mississippi granted to the company the corporate right to extend their road to Columbus, in the State of Mississippi. The Alabama charter' conferred all the rights guaranteed by the general statute of December 29, 1868, and the statute of Mississippi conferred similar powers on the extension-corporation granted by it.

The act of December 29, 1868, was not entirely repealed by the act of March 8, 1876. Certain subjects covered by the former statute, were not touched by the latter. Among them is the provision -for consolidating railroads. The following clause in section 21, act of 1868, was retained, and is yet the law: “And such new Corporation shall possess all the rights, powers and franchises conferred upon said two or more corporations.” — Code of 1876, § 2008; Code of 1886, § 1583.

It is contended for appellant, that under the several consolidations above set forth, the Georgia Pacific Railway Company had succeeded to all the rights, powers and franchises which had pertained to the two companies, “the Elyton & Aberdeen,” and “the Columbus, Fayette & Decatur Railroad Companies,” and, as part and parcel of the same, had come into possession of the right to “acquire, by purchase or gift, lands in the vicinity of said road, or through which the same may pass, . . . such as may be granted to aid in the construction of said road.” — Act of December 29, 1868, § 15; Sess. Acts, 457. The precise scope of the argument is, that the amendment shows the contents and dates of the said two acts of incorporation, thus showing their power to acquire and hold lands to aid in their construction; and inasmuch as those corporations have become consolidated with the Georgia Pacific Railway Company, that power is reserved and still exists in the latter company, which is but the resultant of the consolidation. This, it is contended, arms the Georgia Pacific Railway Company with the requisite power to recover, hold and convey the lands in controversy.

It is not every consolidation of two or more railroad companies, that transfers -to, and confers on the consolidated corporation, “the powers, rights and franchises conferred upon the two or more corporations.” To accomplish that result, the lines of the two or more railroads, or contemplated railroads, should bear such relation to each other, or to the general enterprise, as that, when completed, they may admit the passage of burden or passenger cars over two or more of such roads continuously, without break or interruption. Code of 1886, § 1583 (2008).

The amended bill and its exhibits fail to show that the railroads, or any two of them, which were consolidated or merged into the Georgia Pacific Railway Company, were so situated as that the lings of any two or more of them, whether surveyed or contemplated, would bear such relation to each other, or to the contemplated general enterprise, that their chartered rights could be utilized, in whole or in part, in the construction or extension of a continuous line over which cars could run without break or interruption. Neither the averments of the bill, nor anything in the exhibits, gives us any information on this subject.

We are not able to affirm, from anything shown in the record, that by the consolidation the Georgia Pacific Railway Company succeeded to the right of any other, company to acquire, recover, hold, or dispose of real property, or any interest therein, except such as may be necessary for the construction and operation of the railroad. We find no error in the ruling of the chancellor, sustaining the demurrer to the bill.

The chancellor went further in his ruling, and, holding that the bill could not be amended so as to give it equity, he dismissed it. He thus, by an affirmative ruling, denied to complainant all right to amend. We are not able to affirm that the record, on its face, shows that it cannot be amended so as to give it equity, under the principles declared above. We fully concur with the chancellor in sustaining the demurrer to the bill, but hold that he erred in denying to complainant all right of further amendment. The court having declared that “no further amendment can be made, so as to show complainant’s capacity to hold said lands,” relieved complainant of the duty of asking leave to amend, which would otherwise have rested on him, as a condition of putting the court in error.

Reversed and remanded.

McClellan, J., not sitting, having been of counsel.