54 W. Va. 387 | W. Va. | 1903
The Deepwater Eailway Company commenced a proceeding in the circuit court of Mercer county, in August, 1903, to condemn rights of way over numerous tracts of land, among which were certain lands owned by the Pocahontas Coal and Coke Company and the Norfolk & Western Eailway Company. On the return day of the notice, the Norfolk & Western Eailway Company appeared and filed an answer, setting up certain rights under unrecorded contracts, to which the petitioner replied generally and specially, and moved for a continuance until September 1, 1903, and the motion was sustained over the objection of the petitioner. On said last mentioned day the parties again appeared, as did also the said Pocahontas Coal and Coke Company, and pleas were filed, denjdng petitioner’s right to condemn. On said pleas, issue was made, and the petitioner introduced its articles of incorporation, authorizing it to construct and operate a railroad from a point near Deepwater in Fayette County to a point at or near Glen Jean in said county. Then it offered a resolution adopted by the stockholders of the company, and-filed in the office of the Secretary of State, providing for an extension of the road from Glen Jean to the state line, to the introduction of which the court sustained an objection interposed by the defendants, and refused to allow it and the proof of the filing thereof with the Secretary of State, to go in as evi
The court based its action upon the uncertainty of the extension resolution, holding that it does not state, with sufficient certaint}1-, the point at or near which one of the termini of the extension will be located, and is, for that reason, void. The statute, authorizing extensions of their lines, by railroad corporations, contains the following clause: “Provided, that such corporation before commencing any such extension in this state, shall file in the office of the secretary of state, a certificate stating the point at or near which such extension in this state, shall commence and terminate.” Section 53 of chapter 54, Code of 1899. By way of compliance with this reqrrirement, a copy of the resolution in question was certified by the chairman and secretary of the stockholders meeting and filed in the office of the secretary of state, and reads as'follows:
“Resolved-, That the road be extended from its present terminus named in articles of incorporation and charter, at or near the village of Glen Jean, and near the junction of White Oak Fork of Dun Loup Creek, with said Dun Loup Creek in the County of Fayette, State of West Virginia. Said extension hereby authorized -passes through the counties of Fayette, Raleigh, Wyoming, Mercer, Summers and Monroe, West Virginia, to a point on the state line on the line of Craig, Alleghany or Giles counties, Virginia, said extension to be located on the most practicable route from the present terminus at or near Glen Jean, in the county of Fayette, West Virginia, up the valley of Dun Loup Creek, and its tributaries into the county of Raleigh, thence through Raleigh County by the most practicable route to the county of Wyoming, thence through Wyoming County by the most practicable route to the county of Mercer, thence through the county of Mercer to the Bluestone River, thence down the same by the most practicable, route to New River, in the county of Summers, thence with New River and its tributaries by the most practicable route through the county
It will be observed that the beginning point of this extension is definitely fixed by the first clause of the resolution. The next clause gives a general indication of the route of this extension without fixing the terminus at any certain point. It says the extension shall go “to a point on the said line of Craig, Alee-ghany or Giles County, Virginia.” The court judicially knows that these three counties of Virginia border on the West Virginia line for a long distance, and counsel for the defendants, in his brief, states that distance to be one hundred and thirteen miles. But this clause is followed by another, giving a more particular description of the route, commencing at Glen Jean and giving every county consecutively through which it is proposed to extend the road, and concluding with the following language: “Thence with New Bivcr and its tributaries by the most practicable route through the county of Summers to the county of Monroe, to a point on the state line and on the line of Craig, Alleghany or Giles Counties, Virginia.” Following this particular description, the point at which the extension will strike the Virginia line will necessarily be a point on that line where the three counties of Monroe, Summers and Mercer corner on the line of Craig County, as will appear by reference to a map of the state showing the counties. This describes both the route and the terminus, definitely fixing the latter for all practical purposes. No citation of authority is needed to show that courts take judicial notice of the geography of the state, its lines and sub-divisions. Beading this particular description of the route and terminus of this extension with the map before us, it is found impossible, without doing violence to the language of the resolution to reach the point on the Virginia line elsewhere than at or near this common corner of the three counties. Following the course of the New Bivcr upward from the mouth of the Blue-stone Biver, one strikes that corner, and it is impossible to strike the state line elsewhere without going through
This construction is in harmony with that other rule, applicable alike to statutes, contracts, deeds and other instruments, which makes words and clauses general in their nature yield to those which are more particular, when both tire general and the particular clauses refer to the same matter. Suth. Stat. Cons, sections 158, 159, 216. The first clause is general, but its generality is restrained and limited by what follows. Both it and that which follows it relate to the same thing, the terminus of the road. As independent clauses, they would be inconsistent. As clauses standing together, they must be read and considered together and the instrument interpreted as a whole. In doing this, the rule of construction is to be applied, and its application makes the terminus sufficiently certain to comply substantially, at least, with the requirements of the statute, and nothing more is necessar}'.
As a rule, the courts give to statutes, authorizing the formation of railroad companies, a liberal construction in respect to the requirements thereof concerning the designation of the termini of the road for the construction of which the company is formed. Redf. on Railways, Vo. 1, pp. 412, 413. One of the earliest cases bearing on this question is Railroad Co. v. Sullivant, 5 Ohio St. 276. The certificate of the organization of the corporation in that case was held insufficient, but it lacked
Eakright v. Railroad Co., 13 Ind. 404, was a suit to recover upon a subscription to the original stock of the railroad company, and the court, properly or improperly, proceeded upon the theory that, in order to recover, it was necessary that the company prove its existence de jure. The organization was effected under a special act of the legislature, requiring a designation of “the name of the place from which, and the place to which, the proposed road is to be constructed.” It required this designation to be made in articles of association to be subscribed by the stockholders, and the description, as given in that instrument, described the termini as follows: “The railroad shall commence at the west, or such point on.the west line of Do Kalb County, with a view of connecting with the present Auburn and Eel River Yalley Railroad, at such point as may be agreed on by the companies so connecting; thence running down Eel River valley to Logansport.” In passing upon the sufficiency of its designation, the court said: “The statute simply requires the name of such place to be set forth. This must be done with a reasonable degree of certainty. In our opinion, the articles on their face, show that this requirement of the statute has been properly complied with.” The court could not have deemed it a strict compliance, as the beginning point was not stated, but was left to be fixed by agreement. Hence, they must have considered a substantial compliance sufficient, and, in doing so, the construction was certainly a very liberal one in favor of the company.
In State v. Bailey, 19 Ind. 452, and Heaston v. Railroad Co., 16 Ind. 275, the court expressed doubt as to whether the following description of termini in articles of association was sufficient: “Said road shall commence at Fort Wajme, in the county of Allen, and shall be constructed to the eastern line of the county of Wayne, pointing in the direction of Cincinnati.” But the court said: “If it had been that that terminus was to be the east line of Wayne County, at the point where it would
The Ohio statute requires the designation of the names of the places of tire termini of railroads, and not the names of the places “at or near” which the termini will he, as ours docs, but it was held in Warner v. Callendar, 20 O. St. 190, that it was sufficient to say: “In or near the town of Lima." Again, in Railroad Co. v. Hatch, 20 N. Y. 157, a statute requiring the articles of association to state the length of the proposed road “as near as may be” was held to have been sufficiently complied with by the statement that the road was to be “about seventy-five miles long.” The statute further required an affidavit showing that one thousand dollars per mile had been in good faith subscribed and ten per cent on the subscription paid, and it was held that the statement in the affidavit that eighty-four thousand, one hundred dollars had been subscribed was a sufficient compliance with this requirement. The court decided that the omission, from the affidavit required, of the words “in good faith”, in stating that ten per cent had been paid in cash on the subscription, was immaterial.
These authorities abundantly establish the rule of liberality in the construction of statutes authorizing the formation of railroad companies. The courts everywhere justly hold that the organization of these corporations is favored and encouraged by the legislature, as necessary agencies of internal improvement, promotive of the convenience of the public and necessary to the development of the material wealth of the state, as well as the furtherance of its commercial interest and general welfare. In no state or country, is there greater necessity or reason for railroad building and extension than in the state of West Virginia, and its legislation has been at all times such as to encourage their construction and operation. Under nothing but the strictest rule of interpretation could it be held that this resolution falls short of a compliance with the statute. A careful
Whether, in a condemnation proceeding, a railroad company must prove its existence de jure, when the pica of nul Hiél corporation is interposed, has been extensively and ably discussed in the briefs filed, as well as in the oral argument, but the decision of that question is wholly unnecessary, as the certificate and resolution, under which the proceeding has been instituted, are clearly valid.
From this conclusion, it results that the court below erred in refusing to admit the evidence offered by the applicant, and also in its finding and judgment. Therefore, the judgment will be reversed and the cause remanded for 'further proceedings, in accordance with the principles here decided, and, further, according to law.
Reversed.