41 Kan. 72 | Kan. | 1889
The principal questions for decision in this case are: First, is the Southern Kansas & Panhandle Eailroad Company an existing corporation of the state ? Second, if an existing corporation, was the railroad which it is admitted was built in Clark county constructed by said railroad company ? Third, if constructed by said railroad company, then was the road constructed in accordance with the terms and conditions of the proposition under which the subscription to the capital stock of the company was made? Fourth, has said company by any transfer of its road discharged or released Clark county from the payment of its subscription to the capital stock of the company ?
The first two questions are easily answered. The Southern Kansas & Panhandle Eailroad Company filed its charter on the 28th day of July, 1886. The directors of the company appointed for the first year were E. M. Hewins, of Cedarvale,. Kas.; Geo. D. Thompson, Harper, Kas.; Geo. W. Findley, Fort Scott, Kas.; John P. Jones, Kingman, Kas.; Wm. M. Whitelaw, Kingman, Kas.; S. S. Baker, Kingman, Kas.; F. E. Gammon, Topeka, Kas.; Arthur Gorham, Kinsley, Kas.; A. Watson, Greensburg, Kas. The subscription of Clark county to the capital stock of the company was made September 24, 1886, and on the same day W. B. Strong subr scribed for 3,000 shares. Subsequently each director subscribed for one share. On February 4, 1887, E. M. Hewins was elected president of the company, A. Watson, vice president; Geo. D. Thompson, secretary; and John P. Jones, treasurer. At that meeting by-laws were adopted for the company. On October 20,1887, at a special meeting of the directors of the company, held at Topeka, a contract was entered into with the Chicago, Kansas & Western Eailroad Company for the purpose of procuring the necessary funds to build the company’s line of railroad in Clark county. It also appears from the proceedings as recorded in the office of the secretary of the company, that the board of directors adopted the line and
In Brocaw v. Comm’rs of Gibson Co., 73 Ind. 543, the requirement was that the railroad should be completed prior to receiving any money. It was held in the case “ that it was not meant thereby that the road should be perfect in every respect, but that it should be so far - completed that it might be properly and regularly used for the purpose of transferring freight and passengers.” In Freeman v. Matlock, 67 Ind. 99, it was decided “it was not necessary that the road should be perfect and finished in every particular, and its track well ballasted, but that the road should be so far completed on its located and established line that the cars might have been and were run over it'with reasonable regularity.”
“No. 1. Beginning at the most desirable point at the east or north line of Pratt county, thence in a westerly direction, by the most available route, through the counties of Pratt, Kiowa, Comanche, Ford, Clark, Meade, Seward, Stevens, and Morton, to the west line of the state of Kansas.
“No. 2. Leaving the said line No. 1 at the most available route, in a southerly direction, through the counties of Kiowa, Comanche, and Clark, to the south line of the state of Kansas.
“No. 3. Leaving the said line No. 1 at the most desirable point in Ford, Clark or Meade county, thence by the most available route, in a southerly direction, through the counties of Ford, Clark, and Meade, to the south line of the state of Kansas.”
It clearly appears from the terms of the charter, that the railroad company had ample authority to construct its road in Clark county; but it is contended that its road should have commenced on the east or north line of Pratt county. The conditions contained in the proposition to the tax-payers of Clark county, which became a part of the conditions of the subscription, are as follows:
*83 “And when the railroad of said railroad company shall be built of standard gauge, and completed as a first-class road, and in operation, by lease or otherwise, from a connection with existing lines of road in the state of Kansas, having direct and continuous connection with the Missouri river to the city of Ashland, in said Clark county, the Southern Kansas & Panhandle Railroad Company shall receive fifty thousand dollars of said bonds, and issue five hundred shares of stock therefor; and when completed and in operation to the town of Englewood, or to the west line of said county, said railroad company shall receive an additional ninety thousand dollars of said bonds, and issue therefor nine hundred shares of its stock; provided, not more than four thousand dollars per mile of said bonds shall be issued for each mile of road so constructed in said county.
“The said board of county commissioners shall cause such bonds, with interest coupons attached as aforesaid, to be issued in the name of the said county of Clark, and shall deliver the same to said railroad company on delivery or tender to the county treasurer of said county by said railroad company of certificates for its shares of fully paid-up capital stock of said railroad company equal in amount with said bonds, dollar for dollar; provided, said railroad shall be completed and in operation, by lease or otherwise as aforesaid, with freight and passenger depots or stations established ready for business, within three-fourths of one mile of the center of the city of Ashland, in said county of Clark, on or before the 31st day of December, 1887, and to the west line of said county, or to the city of Englewood, on or before the first day of September, 1888. The acceptance of said bonds legally voted and tendered to said railroad company under this proposition, shall be held and taken as a covenant binding upon said railroad company, its lessees or assigns, to maintain and operate said line of railroad, by lease or otherwise, over the route aforesaid for the term of ninety-nine years from the first day of September, 1888.”
In Lamb v. Anderson, 54 Iowa, 190, the township of Newton voted taxes to the Iowa, Minnesota & North Pacific Railroad Company for the construction of its road through that township. Newton in the township was one.of the designated points in its charter. The court held that as the railroad company failed to construct its road through Newton in the township, it was not entitled to the taxes voted to it.
In Winter v. Railroad Co., 11 Ga. 438, subsequent to the subscription, the charter of the railroad was changed by the legislature so as to run the road in a different direction from that contemplated in the original charter. This was held to be an essential alteration to the original contract. Other and similar decisions are cited, but they are not in conflict with our conclusion, because, as already stated, the road through Clark county was built by the railroad company within the terms of its charter — not contrary to its charter, nor contrary to the propositions submitted. The road when completed had, with existing lines, a direct and continuous connection to the Missouri river.
The final question is, has the railroad company by the transfer or its agreement to transfer its road, discharged or released Clark county from the payment of its subscription? It appears that on the 26th day of October, 1887, the Southern
“Any railroad company in this state existing under general or special laws may sell or lease its road to another railroad company organized under the laws of this state,” etc.
Section 1 of chapter 186, Laws of 1887, amended chapter 134, Laws of 1886; but it also authorizes —
“Any railroad company in this state to sell the whole or any part of its railroad constructed or to be constructed, or any interest therein, together with all the property, rights, privileges and franchises thereto pertaining, to any railroad company organized or existing under the laws of this state.”
Our attention is directed to Manning v. Mathews, 66 Iowa, 665, and Blunt v. Carpenter, 68 id. 265, as conclusive that if the Southern Kansas & Panhandle Railroad Company sold its road or made a contract to sell its road, it cannot collect its subscription. The statute of Iowa differs widely from ours. Under the provisions of our statute, railroads may be mortgaged without limit, consolidated, leased, or sold. Whether these liberal provisions of the statute are wise or not, it is not within the province of this court to determine. That is a matter for the legislature. In Iowa a railroad cannot be incumbered beyond a prescribed limit. Chapter 123, acts of the sixteenth general assembly of that state, provides that the taxpayers shall receive the stock of the railroad company building
“The board of directors of any railroad company receiving taxes voted in aid thereof under the provisions of this act, or those members thereof, or either of them, who shall vote to bond, mortgage, or in any manner incumber said road to an amount, if the same be a railroad of three-feet gauge, to exceed the sum of $8,000 per mile, and if of the ordinary four feet eight and one-half inch gauge, to exceed the sum of $16,-000 per mile, not including in either case any debt for ordinary operating expenses, shall be liable to. the stockholders or either of them for double the amount, estimated at its par value, of the stock by him or her held, if the same should be rendered of less value or lost thereby.”
It is expressly stated in the decisions cited from Iowa, “that it is the purpose of the statute of that state to preserve the existence of the road in the corporation building it, and thus preserve the tax-payers’ interest therein.” As we have no similar statute, the Iowa decisions are not of controlling authority.
Upon the evidence produced, it is ordered that the peremptory writ be issued as prayed for.