(Supreme Court of Mississippi. Jan. 11, 1904.) CRIMINAL LAW-CHANGE OF VENUE-FAIR TRIAL-SHOWING-SUFFICIENCY. 1. Where, on a motion for a change of venue in a criminal case, 23 witnesses testified that they thought defendant could get a fair trial in the county, but it appeared that defendant had been threatened with death at the hands of a mob, and that the sheriff had had difficulty in keeping the defendant from the hands of the mob, and that defendant was guarded by six deputies at the time of his trial, and guarded by 16 deputies the night before the motion for a change of venue was heard, it was error to refuse a change of venue. Appeal from Circuit Court, Montgomery County; W. F. Stevens, Judge. "To be officially reported." Tom Brown was convicted of murder, and he appeals. Reversed. G. A. McLean, for appellant. J. N. Flowers, Asst. Atty. Gen., for the state. WHITFIELD, C. J. Whatever conflict there may be in the evidence, so far as mere opinion is concerned as to whether a fair trial could be had in Montgomery county, the testimony for appellant as to acts and circumstances, far more potential than mere opinion testimony, demonstrates beyond all doubt that the court erred in not granting the motion for a change of venue. With threats of death at the hands of a mob; threats of having the appellant if they had to blow up the jail with dynamite to get him; with the sheriff bringing him to Jackson to save his life; with efforts made to get him from the train, so that the sheriff had to lock him up in the closet while passing through the town; with testimony of a highly inflamed state of public feeling at the time of the homicide, so that the almost universal ex pression was that he ought to be hung; with 6 deputies guarding him, at the very time of his trial, every day in the courthouse; and with 16 deputies needed to guard and protect this defendant the very night before this testimony was heard by the circuit court-it is a mockery to talk of a fair trial. Reversed and remanded. (84 Miss. 29) DOWNING v. HINDS COUNTY. (Supreme Court of Mississippi. March 14, 1904.) COUNTIES-OFFICERS-EXPENSES-POSTAGE. 1. Rev. Code 1892, § 296, provides that the board of supervisors shall furnish the county officers with necessary stationery, furniture, and "all other necessary articles." Held, that the chancery clerk of a county was entitled to be furnished with postage necessary in the business of his office. Appeal from Circuit Court, Hinds County; D. M. Miller, Judge. Action by W. W. Downing against Hinds County. From a judgment in favor of defendant, plaintiff appeals. Reversed. C. M. Williamson, for appellant. B. H. Wells, for appellee. CALHOON, J. This is a friendly controversy between the chancery clerk and the board of supervisors of Hinds county. The clerk wants the actual money he has paid out for postage in his official business as clerk. The board wants to pay him, if it lawfully can. Both are conscientious; the one wanting not to exact what he is not entitled to, and the other not wanting to appropriate public money without warrant of law. We think the terms "stationery," "and all other necessary articles," in section 296 of the Revised Code of 1892, embrace necessary postage used in the public business. The word "stationery" itself is indeterminate, and is to be interpreted in the light of custom and reason. It is hardly conceivable that the lawmaking power designed all officers, great and small, to pay, out of their salaries, the postage on state or county official business. What would become of the State Superintendent of Education, the Governor, Secretary of State, Land Commissioner, Supreme Clerk, and others? Uniform usage in the state, tiding over all the legislative sessions, furnishes a practical construction of the statute which cannot be overlooked. So far as we know, corporations, banks, partnerships, and individual business enterprises include outlays for postage under the head of "stationery." But that word is re-enforced in the statute before us by the words "and all other necessary articles," and certainly postage stamps are indispensably necessary. The solitary instance where the word "postage" is used is in Rev. Code 1892, § 4264, in the chapter on county superintendent of public education, and there the words "and all other necessary articles" do 1. Under Rev. Code 1892, § 3521, providing for proceedings in quo warranto to try the right to an office on the relation of the claimant thereof, a municipal corporation is a proper relator in an information to oust a city policeman alleged to be a usurper of the office. 2. An information in quo warranto to oust a city policeman, alleging that the office was one created by the municipal board and is now existing, and that defendant is exercising its functions without warrant of law, is sufficient, although it does not specifically aver that the office was created before the date charged as that of the commencement of the usurpation. 3. A city that has created the office of policeman, and is under the duty of protecting its citizens by an efficient police, has sufficient interest to become relator in a quo warranto to oust a policeman. Appeal from Circuit Court, Perry County; Jno. R. Enochs, Judge. Proceedings in the nature of quo warranto, on the relation of the city of Hattiesburg, against T. W. Beverly. From a judgment overruling a demurrer to the petition, defendant appeals. Affirmed. Petition of the city avers that the city of Hattiesburg is a municipal corporation operating under the provisions of chapter 93 of the Code of 1892, and is authorized to sue and be sued; that T. W. Beverly has unlawfully usurped the office of policeman, the same being an office created by the mayor and board of aldermen of said city, now existing as a public office, and he has exercised functions of said office since the 14th of January, 1903; and that he usurped the functions thereof without any warrant, right, or authority of law, to the injury and detriment of the public of said city. The defendant demurred to the petition, and assigned the following causes of demurrer: The relator is a corporation, and not an individual person, as the law contemplates. It fails to show whether the said office was created prior to the usurpation by the defendant. It does not show that the city of Hattiesburg has sufficient interest in said office. Parkes & Davis, for appellant. Hartfield & McLaurin, for appellee. CALHOON, J. The demurrer to the information in the quo warranto proceeding was properly overruled. The information was in the name of the state, by the proper district attorney, on the relation of the city of Hattiesburg, to oust a policeman alleged to be a usurper of that office. Rev. Code 1892, § 3521. The relator in such proceeding need not necessarily be an individual. A munici pal corporation, empowered to sue and liable to be sued, may be the relator, and, in the case before us, ought to be. The objection that the information does not specifically aver that the office usurped was created before the date charged as that of the commencement of the usurpation is too technical and refined. It is charged that it was an office created by the municipal board, and that it is now existing, and that Beverly is exercising its functions without warrant of law. This is enough. The third ground of demurrer-that it is not shown that the city has sufficient interest to become relator-is equally untenable; it being shown that it created the office usurped, and was under the duty to protect its citizens by an efficient police. The costs were properly adjudged against defendant by the court below, and are taxed against him here. Affirmed. (83 Miss. 746) YAZOO & M. V. R. CO. v. SOUTHERN RY. 1. A railroad company is a "private corporation," within Const. § 87, providing that the operation of a general law shall not be suspended for the benefit of a private corporation, etc. 2. Where the contract is valid, with no improper or fraudulent actions on either side, the court has no discretion as to enforcing specific performance. 3. The Southern Railway Company is organized under the general law (Rev. Code 1892, § 3572 et seq.) forbidding consolidation with competing roads, and limiting its existence to 99 years. The Yazoo & Mississippi Valley Railroad Company has a perpetual charter under Sheet Acts, 838, giving it various powers not obtainable under the present Constitution. Acts 1902, p. 141, c. 89, authorizes the latter corporation to purchase a competing portion of the road of the former corporation, and to operate it, or tear it up and reconstruct and operate under its present charter. Held in contravention of Const. § 179, declaring that the Legislature shall not pass any law for the benefit of any existing corporation, except on condition that such corporation shall thereafter hold its charter and franchises subject to the provisions of the Constitution. 4. Rev. Code 1892, § 3560, as amended by Laws 1898, pp. 95, 96, c. 80, provides that it shall be unlawful for competing railroad companies operating parallel lines within 20 miles of each other to lease or purchase the opposing line or any part thereof. Acts 1902, p. 141, c. 89, authorizes the Yazoo & Mississippi Valley Railroad Company to purchase a portion of the competing line of the Southern Railway Company. Const. § 87, provides that no special local law shall be enacted for the benefit of individuals or corporations in cases which are or may be provided for by general law, or relief given by a court; nor shall the operation of a general law be suspended by the Legislature for the benefit of any individual or private corpora 2. See Specific Performance, vol. 44, Cent. Dig. § 17. tion. Section 89 provides for a legislative standing committee on local and private legislation, and that no local or private bill shall be passed until referred to this committee and reported back for passage, with reasons therefor, or until voted for by a majority of the members elected if not favorably reported. It is also declared that, if a bill be passed in conformity to the section, the courts shall not, because of its local special or private nature, refuse to enforce it. Held, that section 87 entirely prohibits the suspension of the operation of a general law for the benefit of a private corporation, so that section 89 refers only to laws mentioned in section 87 other than those to suspend the operation of a general law for a private corporation, and hence the Legislature was without power to enact Acts 1902, p. 141, c. 89, thereby suspending Rev. Code 1892, § 3560, as amended. Appeal from Chancery Court, Leflore County; C. C. Moody, Chancellor. Bill by the Yazoo & Mississippi Valley Railroad Company against the Southern Railway Company in Mississippi. From a decree for plaintiff, defendant appeals. Reversed. Mayes & Longstreet and Green & Green, for appellant. Catchings & Catchings, for appellee. CALHOON, J. The Southern Railway Company in Mississippi was chartered since the Constitution of 1890 took effect. Its railroad runs east and west entirely across this state. One of its stations is Greenwood, and another is Itta Bena, a point seven or eight miles west of Greenwood. It owns a branch railway, running at right angles with its main line from Itta Bena, nearly due north, to Webb, at which point the branch terminates; and it owns the rights, franchises, rights of way, turnouts, branches, main and side tracks, and improvements pertaining to it. The existence of this corporation is limited to 99 years. Const. § 178. Its charter is under general laws. Rev. Code 1892, § 3572 et seq. Section 3587 forbids consolidation with a "parallel or competing road." Section 3588 forbids it ever to lease "parallel or competing lines." The Yazoo & Mississippi Valley Railroad Company owns a line of railroad starting at Jackson, Miss., where it has connection with trains to New Orleans, La., and running northerly through nine or ten counties to Clarksdale, where it connects with trains to Memphis, Tenn. In its course it crosses the main line of the Southern Railway Company at Greenwood; and Webb, the terminal of the branch road referred to, is also a station on its line. Both roads run around Swan Lake; the branch of the Southern referred to on the western, and the Mississippi Valley on the eastern, margin. Clearly, there is competition between the two companies for the 33 miles between Webb, the terminal point of the branch, and the main line of the Southern. It is not open to rational discussion that as to this 33-mile branch the two roads are both competing and parallel in view of the law. The Yazoo & Mississippi Valley Railroad Company was chartered February 17, 1882 (Sheet Acts, 838), long before our present Constitution was ordained, and its charter is perpetual, and gives it powers and privileges of various sorts at war with the present Constitution, and not enjoyed or obtainable by any railroad company which has come into existence since that Constitution, or ever will come into existence while it remains in force. These two companies desired to effect a sale of this 33-mile branch, by which the ownership should be transferred to the Yazoo & Mississippi Valley. Both knew that this could not lawfully be done, and so the following legislation was procured: Chapter 89, p. 141, Acts 1902, is as follows: "Section 1. That the Yazoo and Mississippi Valley Railroad Company be, and is hereby authorized and empowered to lease or purchase and to maintain and operate the tracks, rights of way and other property of that certain branch of the Southern Railway Company in and between the stations of Itta Bena, in Leflore county, and of Webbs, in Tallahatchie county, Mississippi, and all the rights and franchises to such branch appertaining, and the said Southern Railway Company is also hereby empowered to lease or sell the same to the said Yazoo and Mississippi Valley Railroad Company. "Sec. 2. Whenever the said lease or purchase shall be made, the said Yazoo and Mississippi Valley Railroad Company is hereby authorized and empowered to connect its present line or lines with the branch so leased or purchased at Black Bayou or at Glendora, in Tallahatchie county; and also said company is authorized and empowered, if it shall so desire, to tear up and abandon all or any part of such branch lying north of said connecting point; and also if it shall so desire, to tear up and abandon all that portion of the present line of said Yazoo & Mississippi Valley Railroad Company lying between said connecting point and Minter City, and all that other portion of the present line of said Yazoo & Mississippi Valley Railroad Company lying between Phillips Junction and Mill Bayou Junction, in Leflore county. "Sec. 3. Whenever the said lease or purchase shall have been made, and the said parts of said branch end of said present line of the Yazoo & Mississippi Valley Railroad Company shall have been torn up and abandoned, the said Yazoo & Mississippi Valley Railroad Company shall within two years thereafter construct under its present charter, and shall thereafter maintain and operate in connection with its present lines, a new line of railroad extending from Itta Bena southward to a connection at or near Belzona. But if said extension from Itta Bena southward is not finished and in full operation within two years from such purchase or lease, the power to purchase or lease is hereby rescinded and this act shall be of no effect." Upon the passage of this act the bargain, at $225,000, was agreed on, conveyance tendered, and the purchase price demanded. But both doubted, manifestly, the constitutionality of the trade, or at least what the courts might hold on that question, and so the Southern filed its bill for specific performance of the contract of sale and purchase, and the case is here from the sustaining of the Southern's exceptions to the answer of the Yazoo & Mississippi Valley, which answer sets up that question. Divers points are made on clauses of the Constitution and acts, and it is convenient first to set these clauses and acts before the profession with the language of them which is precisely pertinent italicized to catch the eye, and then dispose of such as we decide upon: Section 87 of the Constitution is as follows: "Sec. 87. No special local law shall be enacted for the benefit of individuals or corporations in cases which are or can be provided for by a general law, or where the relief sought can be given by any court of this state; nor shall the operation of any general law be suspended by the Legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable, no special law shall be enacted." A railroad corporation is a "private corporation" in the purview of the second clause of this section. Section 88 of the Constitution is this: "Sec. 88. The Legislature shall pass general laws, under which local and private interests shall be provided for and protected, and under which cities and towns may be chartered and their charters amended, and under which corporations may be created, organized, and their acts of incorporation altered; and all such laws shall be subject to repeal or amendment." Accordingly the Legislature did enact a general law pertinent to the matter in hand. It appears in Rev. Code 1892, § 3560, and the amendment to it on pages 95 and 96, c. 80, of the Acts of 1898, as follows: "Section 1. Be it enacted by the Legislature of the State of Mississippi, that section 3560 of the Annotated Code of 1892 be amended so as to read as follows: It shall be unlawful for any railroad company to consolidate with a parallel or competing railroad company, or to allow its affairs to be in any manner managed, regulated or controlled by any such parallel or competing railroad company, or permit its affairs to be so managed, regulated or controlled by the same person or persons who manage, regulate or control the affairs of such competing or parallel railroad company under penalty of the forfeiture of the charters and franchises of such company or companies, and all persons, agents or companies so offending shall be liable to the penalty of ten thousand dollars. And it shall further be unlawful for competing railroad companies operating parallel lines of road within twenty miles of each other to lease or purchase directly or indirectly, the opposing line or any part thereof or any interest therein. Such contracts, no matter in whose name made, are hereby prohibited under the penalties in this section provided." Section 178 of the Constitution provides as follows: "Sec. 178. Corporations shall be formed under general laws only. The Legislature shall have full power to alter, amend or repeal any charter of incorporation now existing and revocable, and any that may hereafter be created, whenever, in its opinion, it may be for the public interest to do so: provided, however, that no injustice shall pe done to the stockholders. No charter for any private corporation for pecuniary gain shall be granted for a longer period than ninetynine years. In assessing for taxation the property and franchises of corporations having charters for a longer period than ninetynine years, the increased value of such property and franchises arising from such longer duration of their charters shall be considered and assessed; but any such corporation shall have the right to surrender the excess over ninety-nine years of its charter." Section 179 is this: "Sec. 179. The Legislature shall never remit the forfeiture of the franchise of any corporation now existing, nor alter nor amend the charter thereof, nor pass any general nor specific law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter and franchises subject to the provisions of this Constitution; and the reception by any corporation of any provision of any such laws, or any taking of any benefit or advantage from the same, shall be conclusively held an agreement by such corporation to hold thereafter its charter and franchises under the provisions hereof." Section 198 is this: "Sec. 198. The Legislature shall enact laws to prevent all trusts, combinations, or contracts, and agreements inimical to the public welfare." Section 89 is this: "Sec. 89. There shall be appointed in each House of the Legislature a standing committee on local and pri vate legislation; the house committee to consist of seven representatives, and the Senate committee of five senators. No local or private bill shall be passed by either House until it shall have been referred to said committee thereof, and shall have been reported back with a recommendation in writing that it do pass, stating affirmatively the reasons thereof, and why the end to be accomplished should not be reached by a general law, or by a proceeding in court; or, if the recommendation of the committee be that the bill do not pass, then it shall not pass the House to which it is so reported unless it be voted for by a majority of all the members elected thereto. If a bill be passed in conformity to the requirements hereof, other than such as are prohibited in the next section, the courts shall not, because of its local, special or private nature, refuse to enforce it." The next section (90) forbids the passage of any "local, private or special laws" under 21 different headings, one of which is: "(r) Conferring the power to exercise the right of eminent domain, or granting to any person, corporation or association the right to lay down railroad tracks or street car tracks in any other manner than that prescribed by general law." Section 190 is this: "The exercise of the right of eminent domain shall never be abridged, or so construed as to prevent the Legislature from taking the property and franchises of incorporated companies, and subjecting them to public use; and the exercise of the police powers of the state shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe upon the rights of individuals or the general well being of the state." Section 184 makes all railroads carrying persons or property for hire "public highways." Section 5, c. 88, p. 127, Laws 1900, in reference to trusts and combines, is as follows: "No corporation shall directly or indirectly purchase or own the capital stock, or any part thereof, of any other corporation, nor di rectly or indirectly purchase, or in any manner acquire the franchise, plant or equipments of any other corporation, if such other corporation be engaged in the same kind of business and be a competitor therein. Any corporation offending against this provision shall forfeit its charter, if a domestic corporation, and, if a foreign corporation, shall forfeit its right to do business in this state, and shall be proceeded against by the Attorney General in the manner and form provided in section 4 of this act." The contract of sale before us can be valid only if the Southern and Yazoo & Mississippi Valley both had the power to make it under the Constitution and laws of the state. If the former is powerless to sell, or if the latter is powerless to buy, the bargain is invalid, of course, and will not be enforced by the courts. The two roads are nowhere more than 7 or 8 to 10 miles apart, and for the first 12 or 15 miles coming south from Webb, except where they run on opposite sides of Swan Lake, are very close together, indeed, in some places being separated only a few yards. (We compute distances from the map in the record.) Counsel for citizens living along the line of the road proposed to be abandoned were admitted by courtesy to file a brief for appellant in the cause, and they make points not presented in the other brief. We will indicate some of the contentions made in both as if made together in one. 1. It is contended that decreeing specific performance is a matter of judicial discretion, and should not be exercised in this case; and Hester v. Hooker, 7 S. & M. 768, and Dan iel v. Frazer, 40 Miss. 507, are cited in support of this view. These cases are not applicable to that at bar. We do not see here any room for judicial discretion if the contract of the sale was valid, there being no question of fraudulent or improper action on either side. 2. It is contended that, inasmuch as the Yazoo & Mississippi Valley had a charter granted before the Constitution of 1890, giving it special privileges, such as fixing its own rates within fixed limits, perpetual succession, etc., the sale is violative of section 178, requiring that corporations should be formed under general laws only; and of section 190, which provides that the exercise of the right of eminent domain shall never be abridged, and that the exercise of the police powers of the state shall never be abridged, or construed to permit corporations to conduct their business in such manner as to infringe upon the rights of individuals; and section 184, making railroads public highways; and of section 179, forbidding the amending of old charters except on condition of being subject to the new Constitution. 3. It is insisted that the sale is also violative of section 17 of the Constitution, which provides that private property shall not be taken or damaged for public use except on due compensation being first made to the owner. And the proposition is that the citizens along the line proposed to be torn up have rights arising out of the fact that property values have become adjusted to the convenience of transportation on that line, and improvements have been made in reference to it. 4. It is insisted that the sale is violative of section 87, which forbids the suspension of the operation of any general law for the benefit of any individual or private corporation or association; and violative of section 88, which requires the Legislature to pass general laws under which local and private interests shall be provided for, and under which corporations may be created, organized, and their acts of incorporation altered; and violative of section 89, forbidding the passage of any local or private bill until it has been referred to a standing committee on local and private legislation, and reported back "that it do pass," stating affirmatively the reasons therefor, and why the matter could not be accomplished by general law or proceeding in court; and violative of clause "r," § 90, as to eminent domain and laying down railroad tracks. Chapter 89, p. 141, Acts 1902, attempting to authorize this sale, and to empower the purchaser to tear up and abandon one of the lines, cannot be upheld under section 179 of the Constitution. If the Yazoo & Mississippi Valley had applied for such power, very clearly, by that section, it could not have received it by "any general or special law, except upon the condition that it thereafter hold its charter and franchises subject to the |