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are not only a great convenience to the citizens, but they have become almost a public necessity. But it is not believed that a foot of all these tracks over all these streets exists otherwise than by virtue of an act of congress directing specifically and minutely where this shall be done. And no power exists in one of these corporations to lay a track, however short, anywhere else. The railroad company now asserting this right runs its cars from the east side of the city to the west, a distance of two miles or more, through a densely populated part of the city, over a track, the location of every foot of which is prescribed with minuteness by acts of congress. And its principal passenger depot, located several hundred yards from the main line of its road through the city, makes this deflection from that line solely by virtue of an express act of congress, passed to enable the company to do so.

It is with these well-known facts before us, showing the care with which congress has repeatedly exercised the power of granting, refusing, and regulating the use of the streets of Washington for railroads, that we approach the examination of the statute or statutes which are supposed to grant the enlarged power claimed by the Baltimore & Potomac Company in this instance. The first and most important of these is the act of congress of February 5, 1867, (14 St. 389.) After reciting that it is represented that the Baltimore & Potomac Railroad Company, incorporated by an act of the general assembly of Maryland, passed May 6, 1853, is desirous to construct a lateral branch from its road to the District of Columbia, it is enacted that "said company shall be, and they are hereby, authorized to extend into and within the District of Columbia, a lateral branch, such as the said company shall constructio or cause to be constructed, in a direction towards the said district, in connection with the railroad which they are about to locate and construct from the city of Baltimore to the Potomac river, in pursuance of their jaid act of incorporation; and the said Baltimore & Potomac Railroad Company are hereby authorized to exercise the same powers, rights, and privileges, and shall be subject to the same restrictions in the extension and construction of the said lateral railroad into and within the said district as they may exercise, or are subject to, under and by intent of their said charter or act of incorporation, in the extension and construction of any railroad within the state of MaryJand, and shall be entitled to the same rights, compensations, benefits, and immunities, in the use of the said road, and in regard thereto, as are provided in their said charter, except the right to construct any lateral road or roads within the said district from the said lateral branch or road hereby authorized, it being expressly understood that the said Baltimore & Potomac Railroad Company shall have power only to construct from the said Baltimore & Potomac Railroad one lateral road within the said district to some point or terminus within the city and county of Washington, to be determined in the manner hereinafter mentioned.”

The third section of this act, after describing the care with which the company shall construct the road across any street or other way, adds: “But the said company, in passing into the district aforesaid, and in constructing the said road within the same, shall enter the city of Washington at such place, and shall pass along such public street or alley to such point or terminus within said city, as may be allowed by congress, upon presentation of survey iind map of proposed location of said road; provided that the level of said location within the said city shall conform to the present graduation of the streets, unless congress shall authorize a different level.” This provision of the original act, under which the Baltimore & Potomac Railroad enters this city, has never been repealed or modified, as far as we are aware, and it fully asserts the purpose of congress to retain in its own hands the right to the use of the streets of the city in regard to this company and its road, as it has ine regard to all others. • By another act, passed March 18, 1869, (16 st. 1,) entitled as supplemen."

tary to the one above cited, it was declared "that said company might enter the city of Washington with their railroad, and construct the same within the limits of said city on and by whichever one of the two routes herein designated the said company may elect and determine; that is to say: First, beginning at the intersection of Boundary street and North Carolina avenue; thence along said North Carolina avenue to South D street; thence along South Dstreet, westwardly, to Virginia avenue; thence along Virginia avenue, north-westwardly, to the intersection of South C street and West Ninth street; or, second, beginning at some point on the northern shore of the eastern branch of the Potomac river, between South L and South M streets; thence westwardly between said streets to the intersection of Virginia avenue with South L and East Twelfth streets; thence along said Virginia avenue, north-westwardly, to South K street; thence along said South K street, westwardly, to South Fourth street; thence, by a line curving to the right, to the north bank of the canal; and thence along the said bank of the canal, northwestwardly, to Virginia avenue; thence along Virginia avenue, north-westwardly, to the intersection of South C and West Ninth streets." Whether this was in accordance with a map, or maps, furnished by the company we are not informed; probably it was. But this is wholly immaterial, as this supplementary statue was clearly made to allow the use of these streets as provided in section 3 of the original act. By another act, approved March 25, 1870, congress authorized the company to make some changes in the line of its road between East Fourth Street and the terminus at the junction of C street south and Ninth Street west, which change, however, is described with the same particularity as the routes above described, and by the same act the time for the completion of the road was extended.

The next act of congress, approved June 21, 1870, (16 St. 61,) also entitled 로

as amendatory of the act of July 5, 1867, authorizes the company to extend its road from the terminus* at Ninth street, "by way of Maryland avenue, conforming to its grade, to the viaduct over the Potomac river at the city of Washington, known as the Long Bridge,' and extend their tracks over said bridge and connect with any railroads constructed, or that may hereafter be constructed, in the state of Virginia." The act then delivers over Long Bridge to the conipany for its use as a railroad bridge, with conditions requiring it to be kept in good repair, and open to free use as a public highway for all the people. It is by virtue alone of the words of this statute, which we have cited in italics, that the road of the company is anywhere near the bridge, or near the locus in quo of the present controversy. It requires a larger measure of liberality in construing grants of the sovereign, and especially grants for the use of the streets of a city for a railroad, than we are accustomed to, to discover in this any authority to depart from Maryland avenue on its way from Ninth street to the Long Bridge. The company having its road well ander way needed a passenger depot for its business, a need much more important than its present need of an additional freight depot. It did not, however, attempt to establish one under its general powers, but made application to congress, which authorized its construction, and in doing so described its location with great precision, and the streets along which the track must go, in departing from the right of way already granted.

This act of March 3, 1871, required the assent of the municipal authorities of the city of Washington for the erection of the depot, and that assent was given by a joint resolution of the board of aldermen and cominon council on March 9, 1871. And so necessary did the company deem the consent of congress to this or any other occupation of the streets or public property of the city, that it procured the passage of the act of May 21, 1872, ratifying the action of the city authorities in the matter, and setting out with greater detail the direction of the lateral track to the passenger depot, and the streets uver which it should go. The title to the streets of Washington is in the

United States, and not in the city, or in the owners of the adjacent lots. * Poo tomac S. B. Co. v. Upper Potomac Co. 109 U.S. 652; S. C. 3 SUP. Ct. REP. 445. It is, therefore, eminently proper that the right to use them for any other than the ordinary use of streets should proceed from congress; and when we consider the express reservation of the power to congress to allow this use in the original grant to the company, found in the third section of that act, and the detail and precision with which every foot of the track or tracks of the road has been prescribed by congress, and every change which expediency required has been previously authorized by congress, we can see no place for the assertion of any right in the company to make other tracks, or changes in location of those now existing, without an act giving the consent of that body.

In the face of these statutes it is hardly necessary to look into the language of the charter of the company by the legislature of Maryland to see if the powers thus conferred, and which are said to be adopted by the act of congress, give this extraordinary power. It is sufficient to say that we do not find in the Maryland charter of that company any power to use the streets of a city as an incident of its right to run to or from such city. That no such right is granted may be fairly inferred from the fact that the track of this road runs for two miles under the city of Baltimore in a tunnel built for that purpose, which must have delayed the completion of the road two or three years, and cost a large sum of money. The company certainly would not have used this expensive underground roadway if anything in its charter authorized it to use the surface streets of the city. And if the construction which counsel place upon that charter is sound, it is very certain that congress did not intend extending that power of the company into the District of Co. lumbia, and part with its own control of the streets and highways of Washington City, for such a power is in conflict with the express language of the act, and with the constant practice under it.

We are referred by counsel to the Revised Statutes of the District of Columbia, chapter 18, concerning corporations. Clause 7 of that chapter provides for the voluntary*association of individuals into corporations for build-ing railroads in the district. It grants these corporations, when formed in compliance with the rules there prescribed, all the usual powers of such companies organized under state statutes, and all that are necessary to the operation of a railroad, and the powers thus conferred are in the main very liberal. There are two reasons, however, why these provisions can give no aid to the Baltimore & Potomac Company: (1) That corporation is organized under a special statute of the state of Maryland, and is a corporation of that state. The act of congress of February 5, 1867, merely authorized that Maryland corporation to extend its road into the District of Columbia, and in defining the powers which the company should exercise in the district it referred to and adopted in the main the act of the state of Maryland granting the charter. This was three years before the general incorporation law was enacted by congress, and the company has never organized under that law, or professed to be governed by it, or asserted itself to be a corporation of the Dis. trict of Columbia. Whether it could do this or not it is unnecessary to decide; but it is very plain that the power conferred by that act was designed only for corporations organized under it, and are not conferred on corporations created by states of the Union governed by the laws of those states. (2) But if this were not so, and if this company could exercise all the powers which that statute grants to corporations organized under it, the statute itself shows, as all the legislation by congress has shown, both before and since, that that body never intended to part with the right to designate the route of a railroad through the city, and on what streets its track should be located, and which streets it should use. This is plain from one of the closing sections of the chapter of the Revised Statutes on that subject, namely: "Sec.

673. No railroad shall be built under the provisions of this chapter until

the route and termini of such ad have been approved by congress.” This section of the general law for the voluntary organization of corporations for building railroads in the District of*Columbia expresses the same idea and the same purpose that section 3 of the act authorizing the Baltimore & Potomac Company to enter the district does, namely, to retain in the hands of congress the absolute control of the use of the streets of the city by any railroad company whatever.

We are of opinion that when this company wishes to depart in any direction from the line of its present track, as prescribed for it by acts of congress, it must obtain permission to do so from that body; and that congress, and not the court nor the company, is the judge of the expediency or the necessity of such change, and of the manner in which the public good requires it to be made and the safeguards which should accompany it.

The decree of the supreme court of the District of Columbia is reversed, and the case remanded, with directions to dismiss the bill.

.636

(114 U. S. 636)
PROVIDENT SAVINGS LIFE ASSUR. Soc. OF NEW YORK 0. FORD.

(May 4, 1885.) 1. JUDGMENT — ACTION UPON - FOREIGN CORPORATION AS JODGMENT DEBTOR SECTION 739, Rev. Sr.

An allegation in a petition for removal of an action on a judgment by a defendant corporation that it was established according to the laws of another state, such allegation being made in order to bring the defendant within the operation of section 739, Rev. St., as to residence and service of process, and to discredit the judgment upon which suit was brought, is evasive and inconsequential, when defend. ant had, in the state of the judgment, an agent served with process, and actually

defended the suit. 2. SAME-ASSIGNMENT OF CAUSE OF ACTION-ACT OF MARCH 3, 1875.

Where an assignment of a cause of action is colorably made for the purpose of giving jurisdiction to the United States court, the fifth section of the act of March 3, 1875, relating to removals, has now given to the circuit courts power to dismiss or remand the cause at any time when the fact is made to appear. In Error to the Supreme Court of the State of New York.

8. G. Clarke and E. B. Smith, for plaintiff in error. Esek Cowen, for defendant in error.

* BRADLEY, J. This was an action brought in the supreme court of New York by Daniel W. Ford, the defendant in error, against the Provident Savings Life Assurance Company, the plaintiff in error, on a judgment recovered by one Charles Cochran against said company in the circuit court of the United States for the Northern district of Ohio, and assigned by Cochran to the plaintiff, Ford. The complaint contained, among others, the following averments, to-wit: “That heretofore, and on or about the twelfth day of December, 1876, one Charles Cochran, then a resident of the state of Ohio, in due form of law, commenced an action in the United States circuit court for the Northern district of Ohio against the defendant in this action, praying for a judgment against said defendant for twenty thousand dollars' damages; that the defendant in said action and herein duly appeared in said action, and answered the petition or complaint of said Cochran, and after trial had of the issues thus joined, at which the defendant therein and herein duly appeared, judgment was duly directed, and subsequently, and on or about the tenth day of October, 1878, was duly entered and docketed in the office of the clerk of said United States circuit court for the said Northern district of Ohio, in favor of the said complainant, Cochran, and against the said The Provident Savings Life Assurance Society of New York, the defendant therein and herein, for the sum of three thousand three hundred five and 45-100 dollars damages and

*

costs.

This plaintiff further alleges that on or about the thirtieth day of November, 1878, the said Charles Cochran, the complainant in said action, and the then lawful holder and owner of said*judgment, duly assigned and transferred to this plaintiff the said judgment, together with all his rights and claims thereunder and the interest due thereon."

The defendant, in answer to the complaint, adınitted that Cochran had taken some proceedings in the circuit court of the United States for the Northern district of Ohio, praying for judgment against the defe:dant; but averred that there was never any personal service of process, summons, or petition upon the defendant; and denied any knowledge of the recovery of any judgment as alleged in the complaint, or that Cochran had assigned the alleged judgment to Ford.

The cause came on for trial in February, 1879, but before the trial commenced the defendant presented a petition for the removal of the cause to the circuit court of the United States for the Northern district of New York, accompanied by a bond, which was approved by the court. The petition was as follows, to-wit:

"SUPREME COURT, RENSSELAER COUNTY. “Daniel W. Ford against The Provident Savings Life Assurance Society of

New York. "To said Supreme Court: Your petitioner respectfully shows to this honorable court that it is the defendant in the above action, and a corporation duly incorporated under the laws of the state of New York, located and having its place of business in the city of New York, and was such corporation during all the times hereinafter mentioned, and was never organized or incorporated under any law of the state of Ohio; that the above action is brought to recover the amount of a judgment alleged to have been obtained against your petitioner in the state of Ohio, by one Charles Cochran, on the tenth day of October, 1878, in the circuit court of the United States for the Northern district of Ohio, for the sum of three thousand three hundred and five dollars. and forty-five cents; that said Cochran then resided and still resides in the state of Ohio;*that this action is brought upon an alleged assignment of said judgment to the plaintiff above named by said Cochran, and is now pending and undetermined; that the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and involves questions arising under the laws of the United States, to-wit, under section 739 of the Revised Statutes of the United States. Said section forbids • any suit to be brought by any original process before either of the United States courts against an inhabitant of the United States in any other district than that of which he is an inhabitant, or in which he shall be found at the time of serving the writ.' And your petitioner avers that the said suit in Ohio was by original process, but that the said process was never served personally upon the defendant in said action in Ohio, or upon any of its officers, nor was the defendant ever an inhabitant of Ohio or found therein; and, as your petitioner verily believes, said circuit court never acquired jurisdiction, and said judgment is invalid and void, and that such want of personal service as aforesaid is alleged in the answer in the present action, and that the trial of this action will necessarily involve the construction and effect of the said law of the United States, to-wit, the said 739th section of the said United States Revised Statutes. Secondly. And your petitioners further say, as they are informed and verily believe, that the plaintiff in this action is not the real party in interest therein, but that said Cochran is the real party in interest, and that said alleged assignment is merely colorable; that it was made without any consideration and merely for the purpose of prosecuting and collecting said judgment for the benefit of said Cochran, and to avoid the necessity of said Cochran's giving security for costs as a non-resident of this state, and to embarrass and, if possible, pre

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