American Lumber Co. v. Tombigbee Valley Railway Co. , 154 Ala. 385 ( 1908 )

TYSON, C. J.

The chancellor entertained the view that the bill in this case was in effect, if not in terms, one to compel the specific performance of a contract; that to effectuate the preliminary writ of injunction and to grant relief, whether mandatory to compel performance of the contract or to prohibit its. violation on the part of the respondent, would amount substantially to a decree requiring the performance of the terms of the contract; that, such being the nature and purpose of the bill, it was without equity, for want of mutuality of remedy between the parties. If such be the nature of the relief sought, it is conceded by appellant’s counsel that the decree appealed from was correct. But it is contended by appellant, in order to avoid this result, that under the contract it acquired an absolute and unqualified leasehold interest in the railroad — a right in rem as distinguished from a personal contractual obligation to operate its trains over the road; that its acquired leasehold right under the contract was a vested one, and property to which it has a title for the period of 10 years from the date of the making of the contract, towit, January 29, 1906; that, such being the status of complainant with respect to the ownership of the road ..for the period of time named, it has the right to the use of the road to its full capacity for the hauling of its logs, to the exclusion of the defendant. And, logically, the complainant’s right to the full enjoyment of the road, to the end of striking down defendant’s duty, as a quasi public corporation, to the public, must be conceded, if the contract confers such a property interest upon complainant as is contended for. Upon the theory that the contract conveys to complainant an absolute and unqualified right of enjoyment of a leasehold interest, unfettered by any limitations upon this right, it is asserted that the equity of the bill can and should be rested upon the protection of that right, and not upon the specific performance of the contract. To the end of protecting this right, it is said, any encroachment upon its quiet enjoyment and exercise null be prevented by injunction.

All this may. be conceded, though such a construction of the contract, it seems to us, is wholly inadmissible; yet, it appearing by the averments of the bill that the respondent is a railroad company and a common carrier of passengers and freight, the attempted grant or investiture of the right or interest in complainant — a purely private business corporation — to the extent contended for would be clearly a violation of the public policy of the state, if not directly inhibited by section 242 of the Constitution of 1901. The recognition and the protection of such a grant by injunction would be a warrant to railroad companies, by leases of their tracks,, to rid themselves of the duties and responsibilities of common carriers, and would enable them, after obtaining franchises as public service corporations, to abandon their public functions and duties by conferring the use of their franchises and properties upon any private concern they might select. If such a principle is once established, it would be but a short step to hold that public carrying corporations might entirely abandon their public functions and duties, and prostitute the uses of the franchises and privileges granted to them into enterprises for purely private gain, to the exclusion of the rights of the public. Indeed, in the absence of express legislative authority, one railroad company has no power to lease its road or other property to another railroad corporation, though a common carrier, and such an attempted lease is void as against public policy. —George v. Central R. & B. Co., 101 Ala. 607, 619, 14 South. 750; M. & C. R. R. Co. v. Grayson, 88 Ala. 572, 7 South. 122, 16 Am. St. Rep. 89.

The decree appealed from must be affirmed.

Dowdell, Anderson, and McClellan, JJ., concur.