Report

The test was a most thorough one--not of one particular feature, but of the whole system in its entire scope and in all its details. The bill of complaint being what is sometimes called a "fishing bill,"--fishing for all possible objections, the assault was perfectly fundamental. The act was assailed as contrary to the Constitution of the United States and of the State of Georgia, in numerous particulars. The validity of the Code for two years, viz: till affirmed by the Constitutional Convention of 1865, was impeached, the authority of the General Assembly denied, and the application of the law to the Savannah, Florida and Western Railroad, and the action of the Commission under the law, contested. No nook or corner escaped the drag-net, searching for objections. The appeal was made to the Constitution; to chartered rights; to the United States Court, lest the State Courts might be biased; and even the motives of the State, the Legislature and the Commission were not spared.

said standard schedule of tariffs, instructions and rules, for the reasons that the said act is unconstitutional, the said instructions, rules and rates are illegal, unjust and unreasonable, and so improvident that the enforcement of them would bankrupt the defendant, impair the contract contained in the said trust deed, and compel ration, in the interest of one class of individuals only, though practising the most rigid economy, as to default annually to the amount of from $40,000 to $50,000, in the payment of said coupons.

this defendant so to conduct the business of the corpo

The company decided to obey, under protest, the orders of the Commissioners in all things. This decision was induced by the severe penalties and the multiplicity of suits and prosecutions threatened against any railway company which might attempt to resist these orders, and honestly assert a constitutional right. In this argument, none of the principles settled in what are known as the Granger cases will be disputed, although it is believed that in time, as the railroad problem approaches a solution, they will be modified, if not altogether changed.

From these Granger cases the following selections from Chicago, etc, R. R. o. v. Iowa, reported in 94 U.

S., pp. 161, 162, may be stated as the law now settled:
"Railroad companies are subject to legislative control
as to their rates of fare and freight, unless protected by
their charters."
"Whatever is granted is
secured, subject only to the limitations and reserva-
tions in the charter or in the laws or CONSTITUTIONS
which govern it."

"It was within

the powers of the Company to call upon the Legislature to fix, permanently, this limit, and make it part of the charter." "If that had been done, the charter might

The case being a very instructive one, covering the whole field, and the argument comprehensive and thorough, and well worthy of have presented a contract against future legislative in

study, we present as much of it as possible.

The bill was filed by Robert Falligant, Esq., and briefs prepared by him and Messrs. Chisholm & Erwin.

These briefs, characterized by learning and ability, we cannot present in full by reason of their great length, but we give extracts from them, showing the main grounds and authori

ties:

BILL FOR INJUNCTION AND RELIEF IN THE U. s.
CIRCUIT COURT FOR THE SOUTHERN DISTRICT

OF GEORGIA.

GEORGE II. TILLEY, Complainant, v8. THE SAVANNAH,
FLORIDA AND WESTERN RAILWAY COMPANY et al.,
Defendants.

EXTRACTS FROM THE BRIEF OF ME SRS.
CHISHOLM & ERWIN.

ference."

61 Mo., 24.

S. C., 21. Amer., 397.

Under this authority, the points in the case at bar, resolve themselves into an investigation of the following propositions:

First. Are these complainants protected by the charter of the A. and G. Railroad, or by their contract with that Company and its stockholders from the threatened wrongs and losses about to be imposed upon them by

the Commissioners, under the act of Oct. 14, 1879 ?

Second. Are the provisions of the said act, under which the said Commissioners are proceeding, constitutional? Are those provisions, or any of them, in conflict with rights guaranteed to the complainants, either by the Constitution of the State of Georgia or of the United States?

Third. If these provisions of the said act are constitutional, when interpreted, do they not constitute these Commissioners managers of all the railroads in Georgia, vested with powers to be enforced by most extraordiThe purpose of the bill is to restrain the defendant nary penalties? And if this be true, are the Commisfrom putting in operation and enforcing on the Savan-sioners not subject, like other managers, when their ad

ministration threatens to be improvident, to be restrained by a court of equity to prevent unnecessary and irre parable loss and damage?

98 U. S., 359.

6 Barr (Penn.), 515, 516.

Cooley's Constitutional Limitations, 177. Sedgwick on Constitutional Limitations, 117.

14 Ga., 83.

17 Amr. R., 427.

8th N. Y., 483, 488.

42 Ga., 505.

10 Wheaton (U. S.), 42, 43.

U. S. Digest, N. S., Vol. VI., p. 728.

The exception to this rule is the well recognized distinction between general laws and local laws. For local purposes, the power to make ordinances may be delegated to cities, towns, etc.

54 Ga., 324.

Cooley's Constitutional Limitations, 191.

But it will bo said that under the authority of Munn v. Illinois, 94 U. S., pp. 133, 134 and of Peik v Chicago, etc., Railway Co., 94 U. S., p. 178, the Legislature, and not the courts, must decide what is reasonable, and that the management of the Commissioners, however partial, unjust and improvident, cannot be restrained by the

courts.

To this proposition the answer is plain. In each of these cases, the Legislatures had, under Constitutions altogether different from the Constitution of Georgia, passed laws fixing maximum charges.

But in the case at bar, the Legislature has not fixed the rates; on the contrary, under the act of October 14, 1879, the questious what shall be a fair and reasonable rate, or toll, or compensation for the transportation of passengers or freight," and what "shall make any unjust discrimination?" are particularly made matters of judicial investigation. And this is consonant with authority. The rates fixed by the Commissioners are but rules of evidence. A few of the cases collated in the argument of Gen. Farnsworth before the committee of the House of Representatives, are referred to on this point,

61 Missouri, p. 24.

52 Maine, p. 451.

Brown, on the law of Carriers, p. 258.

4 C. B. (N. S.), p. 139, and 8 C. B., 709. 4 C. B. (N. S.)

4 Brewster, 620.

4 C. B. (N. S.) p. 63.

67 Ill., 37.

S. C., 16 Amer. Rep., 611.

If the words suflicient evidence" should be held to mean only prima facie evidence, and this view is somewhat strengthened by the latter clause of said section, in which the schedules are spoken of as prima facie evidence, then it seems plain that the intention of the Legislature was that they should be reviewed by the

courts.

95 U. S., pp. 24, 325.

99 U. S., 720.

15 How. 309.

16 Wall. 203, 232.

9 Wheat., 907.

13 Peters, 12.

Hamilton's Works, vol. 3, pp. 518, 519.

99 U. S., 759.

99 U. S., 731-2.

99.U. S., 749.

73 N. C., 527.

S. C., 21 Amer. Repts., 473. 52 Ga, 629.

54 Ga., 379.

49 Ga., 158.

4 Ga., 38. 12 Ga., 43.

2 Woods, 370.

95 U. S., 708.

10 Wheaton, 46.

8th Ga., 22'.

Cooley's Const. Lim., p. 368. 67 Ill., 11.

S. C. 16 Amer., 599, 610. 15 Ga., 479.

47 Ga., 564.
19 Wall. 675.

94 U. S., 107.
99 U. S., 746, 747.
99 U. S., 737-8.
18 How., 272.

4 Dev. (N. C.) 1-15.
1 Curtis, 325-6.
96 U. S,, 101, 107.
95 U. S., 715.

Howard v. Moot, 64 N. Y., 268.

13 Wall., 268. 93 U. S, 223. 57 Ga., 346. 99 U. S., 722. 18 How., 341.

U. S. Revised Statutes, secs. 721, 862. 2 Black, 427, 431. 7 Wall., 430.

16 Amer, 610.

Brief of Messrs. MYNATT & HOWELL, for defendants.

The Bill filed in this case belongs to the class quia timet. No harm or injury is alleged to plaintiff's shares in the Savannah, Florida and Western Railway Comrany. It is all apprehended. It is not like the case of Woolsey vs. Dodge, 18 How. There the State of Ohio was levying a tax upon the property of the bank in which Woolsey was a share-holder, and taking from the bank more money for taxes than it was entitled to do under the original charter. That was an actual taking of the money of the bank, and to that extent an injury to the bank and its share-holders. But the case at bar is a very different one. The State has passed a law under which the plaintiff fears the corporation will not make as much money as it would have done without this law. The plaintiff ventures to make this guess. All this bill, invoking the power of the Federal Court to stop the enforcement of the laws of the State, and which contravenes its entire policy as to the railroads of the State is based upon a guess. The corporation and the share-holder are as distinct as any other persons. It is not for the share-holder to complain that the constitutional rights of the corporation have been violated unless that violation has resulted in detriment to him.

The complainant states no fixed or other amount that he is entitled to recover as a dividend upon his shares. The corporation owes him no particular dividend. It may or may not pay him a dividend. Then the case is that the corporation which may or may not owe him a

dividend, may not be able to make as much money | senger tariffs. The Commissioners have fixed rates below under the rates fixed by the Commissioners as under the rates fixed by Mr. Haines.

This interest is too uncertain; Story Eq. Pl. sec. 261. But concede that he has such interest as will be recognized by a court of equity. Does he make such a case of apprehended injury to his sha.es as will entitle him to an injunction? Is it not a question of policy? May he not be mistaken in the opinion he entertains of the proper charges to be made for the carriage of freights and passengers? May not a low rate of tariffs induce more transportation and finally make more money? In short, is it that sort of apprehension that will induce the restraining action of this court? The Supreme Court of Georgia, in one of the early decisions, Hannahan vs. Nichols, 17 Ga., 77, said that the quia-timet power of a court of equity is quite a vague one (and therefore a dangerous one.) Hannahan had sold a slave, the purchaser had become insolvent and was trying to sell the slave, and he desired him enjoined, fearing he might lose the debt. The injunction was refused with the statement above made by the Court. Subsequently the Legislature puts this section (3232) in the Code of Georgia. The proceeding quia-timet is sustained in equity for the purpose of causing to be delivered up and cancelled any instrument which has answered the object of its creation or any forged or other iniquitous deed or other writing which though not enforced at the time, either casts a cloud over complainant's title or otherwise subjects him to future liability or present annoyance, and the cancellation of which is necessary to his perfect protection." This statute seems to limit the bill to the cancellation of instruments likely to injure the plaintiff. Its purpose seems to be to define and render certain that which was before vague. It is a statutory definition of "qaiatimet." It is an expression of its application and an exclusion of any other application. Sedgwick's Stat and Const. Law, page 39. If then Equity would afford no relief in the State Courts it would afford none in the

United States Courts. Emory vs. City of St. Louis, 5
Wall 413; Morgan vs. R. R. Co., 1 Woods, 15.

those which the Savannah, Florida and Western Railway Company was allowed to charge. This, the complainant charges, controvenes section 10 of article 1 of the U. S. Constitution. It impairs the obligation of a contract. The State had contracted with the Savannah, Florida and Western Railway Company, that it might charge certain rates, and then subsequently had denied to it that privilege. The complainant claims for the Savannah, Florida and Western Railway Company the same chartered rights and privileges of the Atlantic and Gulf Railroad Company. Let us concede for the present that it has them. What are those rights and privileges? None except those that the State may revoke or alter as it chooses. It was a part of the contract of the State with the Atlantic and Gulf Railroad Company, all of whose rights and privileges the complainant claims for the Savannah, Florida and Western Railway Company, that the State should change, modify or destroy the franchises of that company whenever it should choose to do so. Code of 1863, section 1651. Also that the State might withdraw its franchise whenever it should choose to do so. Code, $1652. This has been expressly decided in the case of that road against the State of Georgia, in 8 Otto., page 365. The Atlantic and Gulf Railroad Company, whose boasted rights and privileges George H. Tilley so elaborately portrays before the court in this bill, had no right or privilege that it did not agree that the State might take away whenever it should choose to do it. Two sections of the Code quoted above were a part of its charter. To every sentence granting a right or privilege there is a reservation of the right to change, modify, destroy or withdraw it whenever the State should think proper to exercise that right. This is certainly settled by the case cited above, and needs no further argument, or citation of authority.

If then this complainant is correct in claiming all the rights and privileges of the Atlantic and Gulf Railroad, for the Savannah, Florida and Western Railway Company the only appearance of any purpose to violate a contract is in the complainant himself, who seeks to use his corporation and the power of this Court to prevent the State from exercising a right which the Atlantic and Gulf Railroad Company solemnly contracted it might exercise in its discretion.

But let us look to the charter of the Savannah, Florida and Western Railway Company as it appears in the act of 1876. That act provides for the organization of the purchasers of a railroad sold under a mortgage or at judicial

But if the matter of relief by bills quia-timit be not limited by the specifications in the Code, then it must be lim-sale, into a corporation. The 8th section of said act proited by the precedents and the principles upon which those precedents are based. In this State those prece dents are in the protection of remainder interests and the cancellation of deeds and instruments as provided in the section of the Code read. In addition to these, Story names the protection of a surety against the laches of a creditor. We think these embrace about all the purposes for which bills of this sort have been sustained. No case has ever been sustained of mere apprehended loss or injury to plaintiff's debtor, or to the corporation in which the plaintiff was a shareholder.

Again, the matter in dispute is not alleged to be any particular amount. That the plaintiff's shares will be injured in any particular amount does not appear by this bill. The Court, therefore, has no jurisdiction.

vides, "That nothing in this act shall operate to vest in any purchaser of any railroad and its franchises any exemptions from taxation existing or claiming to exist in the corporation which shall have been the owner of said railroad and its franchises, or to limit the powers of the Legislature to alter, modify or withdraw the charter and fran. chises herein provided." These are the terms upon which Mr. Tilley and his frightened associates succeeded to the rights, privileges and immunities of the Atlantic and Gulf Railroad. Is it any wonder that the company as such declines to resist the State in the enforcement of the act of 1879? Well may it fear the penalties of the act, and impose upon a foreigner who is presumed to be unacquainted with our Constitution and laws, the responsibility of charging the State with a breach of its contract.

In the case of Tomlinson vs. Jessup, 15 Wall, at page 457, the court uses this language: "The act amending the charter of the Northeastern Railroad Company, passed in December, 1855, provided that the stock of the company and the real estate it then owned, or might hereafter acquire, connected with or subservient to the works author

We come now to the constitutional questions made by the bill. The complainant insists that the Savannah, Florida and Western Railway Company succeeds to all the corporate rights, privileges and immunities of the Atlantic and Gulf Railroad, and that the latter succeeded to all the corporate rights, privileges and immunities of all the railroads in the State at the date of its charter, to-wit:ized by its charter, should be exempted from taxation In 1863. One of these privileges is to charge not exceed ing certain maximum rates fixed by the charter of the Georgia and Central Railroads. The Act of October, 1879, authorizes Commissioners to fix rates of freight and pas

during the continuance of the charter. This act contained no clause excepting the amendment from the provisions of the general law of 1841. It was, therefore, itself subject to repeal by force of that law.

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