APPENDIX
The following opinion of Associate Justice Clark at Chambers, construing the election law, is of sufficient interest to be added here, as no appeal was taken:
Upon hearing counsel for an against the motion I am of opinion that the object of the statute in requiring the preservation of the ballots in duplicate ballot boxes, duly sealed up, is that they may be kept as evidence to verify or correct the election returns when impeached.
If a quo warranto was being tried in the Superior Court, (916) certainly the judge presiding might order said ballot boxes brought into court and a recount made in the presence of the Court and jury. In contested elections for members of the General Assembly and members of Congress the evidence is taken, not before a jury, but before a commissioner and submitted upon depositions. Therefore, if the same benefit of the recount of the ballots is to be had, as on the trial of aquo warranto, there must be an order to have the examination of the ballots made before the commissioner and the result reported to the
legislative body. It is not possible that the Legislature intended that the clerks of Cherokee or Dare or any other county should attend with their numerous ballot boxes before the General Assembly in Raleigh or before the Congressional Committee on Elections.
I am of opinion that the clerk properly declined to permit the boxes to be opened and a recount made on the motion of a commissioner to take depositions, and that this should only be done upon the order of a judge of the Superior or Supreme Court under the supervisory powers conferred by chapter 159, Laws 1895. The powers thus conferred do not cease on election day, but cover all matters pertinent to the scope of that act, including the election and the returns. The act by its tenor is to be liberally construed with a view of effectuating its purposes of securing both a "free ballot" and "a fair count." The effect of the recount, as well as of the original returns, is for the General Assembly, who are to judge of the qualification and election of their own members, but that honorable body is entitled to have the result of such recount laid before them upon their assembling — especially since, their sessions being limited to sixty days, it is due that body and the public as well that there may be means of speedily determining the rights of contestees and contestants to seats.
The ballot boxes should not be taken out of the custody of the (917) clerk nor the place designated for their deposit. Therefore, be it ordered:
That on 30 December, 1896, at 10 o'clock, D.H. Young, clerk of the Superior Court of Wake County, will, in the office of said clerk, in turn open each and every ballot box, containing votes for the General Assembly, from the precincts designated in section 8 of the contestant's complaint or notice of contest, and in the presence of the commissioner and the parties and their counsel count and certify the number of ballots in each cast for N. B. Broughton and the number cast for James H. Young, till each and every box designated has been opened and counted, which certificate, countersigned by the commissioner, shall be certified in the evidence submitted to the General Assembly. As the vote of each box is counted, the ballots shall be immediately replaced in the box by the clerk, and the box shall again be sealed up and replaced by him in the same place of deposit till further authority is given to open the same. The recount thus authorized extends only to the names of the contestant and contestee in this action.
Cited: Cozart v. Fleming, 123 N.C. 557, 558.
(918)
APPENDIX 2.
The Court directs that the opinion rendered by Hon. R. P. Dick, U.S. Judge for the Western District of North Carolina, in J. S. Bradley, Admr.,etc., v. The Ohio River and C. Railway Company, on motion to remand to the State Court, be printed in this volume of the Reports. The case is the same as that reported 912, ante. His Honor, Judge Simonton, of the United States Circuit Court, concurred in the opinion of Judge Dick.
WESTERN DISTRICT OF NORTH CAROLINA, IN THE CIRCUIT COURT, AT GREENSBORO.
(Opinion filed 15 January, 1897.)
J. S. BRADLEY, Admr. } v. } MOTION to remand to the State Court. THE O. R. C. RY. CO. }
DICK, J. This action was instituted in the State Court for the county of McDowell to recover damages for personal injuries occurring in this State, and defendant availed itself of the right given by the act of Congress of 13 August, 1888, to nonresident defendants to remove an action pending in a State Court to the United States Circuit Court on the grounds of local prejudice, etc.
The application was received and considered, and this Court adjudged that local prejudice did exist in said county as alleged and proved by evidence, and an order was made for the removal of this case from the State Court to this Court at Charlotte.
In the said order leave was granted to plaintiff to file a motion to remand at the next term of this Court, and such motion was duly made and is now before this Court for determination.
This order was not recognized and observed by the State Court, which declined to relinquish jurisdiction on the grounds insisted (919) upon by the plaintiff:
"1st. That the O. R. C. R. R. Co. is a corporation and citizen of North Carolina.
"2d. That this fact also appears in the records and pleadings."
From this order in the State Court the defendant prayed an appeal, which was allowed, and the clerk was directed to send up a full transcript of the record and all papers filed in the case.
On a hearing in the Supreme Court in the term just closed the Court affirmed the order of the court below, not upon the grounds stated in the
order appealed from, although fully presented in the record, briefs, and argument before the Court, but upon a defect that appeared in the proceedings of this Court for the removal of the cause.
I concur in this decision of the Supreme Court founded upon the fact that "it does not affirmatively appear, either in the petition or in the order of removal, or anywhere else in the record, that the diverse citizenship of the parties existed also at the time of the commencement of the action."
This decision is not important if the substantial grounds set forth in the order of the State Court are not well founded, for as the case was properly retained and is still pending in the State Court, and this Court acquired no jurisdiction, by reason of its defective proceedings, the defect mentioned could be remedied by the defendant filing a new petition, alleging the facts omitted by inadvertence, and obtaining a correct and legal order of removal, for common justice would require that the defendant should not be deprived of a substantial legal right by the nonobservance of his counsel and the Court of a matter that is to some extent often refined and technical.
The material question law for this Court to decide on the (920) pending motion to remand is whether the defendant is a foreign or domestic corporation before allowing a new petition to be filed.
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APPENDIX
The following opinion of Associate Justice Clark at Chambers, construing the election law, is of sufficient interest to be added here, as no appeal was taken:
Upon hearing counsel for an against the motion I am of opinion that the object of the statute in requiring the preservation of the ballots in duplicate ballot boxes, duly sealed up, is that they may be kept as evidence to verify or correct the election returns when impeached.
If a quo warranto was being tried in the Superior Court, (916) certainly the judge presiding might order said ballot boxes brought into court and a recount made in the presence of the Court and jury. In contested elections for members of the General Assembly and members of Congress the evidence is taken, not before a jury, but before a commissioner and submitted upon depositions. Therefore, if the same benefit of the recount of the ballots is to be had, as on the trial of aquo warranto, there must be an order to have the examination of the ballots made before the commissioner and the result reported to the
legislative body. It is not possible that the Legislature intended that the clerks of Cherokee or Dare or any other county should attend with their numerous ballot boxes before the General Assembly in Raleigh or before the Congressional Committee on Elections.
I am of opinion that the clerk properly declined to permit the boxes to be opened and a recount made on the motion of a commissioner to take depositions, and that this should only be done upon the order of a judge of the Superior or Supreme Court under the supervisory powers conferred by chapter 159, Laws 1895. The powers thus conferred do not cease on election day, but cover all matters pertinent to the scope of that act, including the election and the returns. The act by its tenor is to be liberally construed with a view of effectuating its purposes of securing both a "free ballot" and "a fair count." The effect of the recount, as well as of the original returns, is for the General Assembly, who are to judge of the qualification and election of their own members, but that honorable body is entitled to have the result of such recount laid before them upon their assembling — especially since, their sessions being limited to sixty days, it is due that body and the public as well that there may be means of speedily determining the rights of contestees and contestants to seats.
The ballot boxes should not be taken out of the custody of the (917) clerk nor the place designated for their deposit. Therefore, be it ordered:
That on 30 December, 1896, at 10 o'clock, D.H. Young, clerk of the Superior Court of Wake County, will, in the office of said clerk, in turn open each and every ballot box, containing votes for the General Assembly, from the precincts designated in section 8 of the contestant's complaint or notice of contest, and in the presence of the commissioner and the parties and their counsel count and certify the number of ballots in each cast for N. B. Broughton and the number cast for James H. Young, till each and every box designated has been opened and counted, which certificate, countersigned by the commissioner, shall be certified in the evidence submitted to the General Assembly. As the vote of each box is counted, the ballots shall be immediately replaced in the box by the clerk, and the box shall again be sealed up and replaced by him in the same place of deposit till further authority is given to open the same. The recount thus authorized extends only to the names of the contestant and contestee in this action.
Cited: Cozart v. Fleming, 123 N.C. 557, 558.
(918)
APPENDIX 2.
The Court directs that the opinion rendered by Hon. R. P. Dick, U.S. Judge for the Western District of North Carolina, in J. S. Bradley, Admr.,etc., v. The Ohio River and C. Railway Company, on motion to remand to the State Court, be printed in this volume of the Reports. The case is the same as that reported 912, ante. His Honor, Judge Simonton, of the United States Circuit Court, concurred in the opinion of Judge Dick.
WESTERN DISTRICT OF NORTH CAROLINA, IN THE CIRCUIT COURT, AT GREENSBORO.
(Opinion filed 15 January, 1897.)
J. S. BRADLEY, Admr. } v. } MOTION to remand to the State Court. THE O. R. C. RY. CO. }
DICK, J. This action was instituted in the State Court for the county of McDowell to recover damages for personal injuries occurring in this State, and defendant availed itself of the right given by the act of Congress of 13 August, 1888, to nonresident defendants to remove an action pending in a State Court to the United States Circuit Court on the grounds of local prejudice, etc.
The application was received and considered, and this Court adjudged that local prejudice did exist in said county as alleged and proved by evidence, and an order was made for the removal of this case from the State Court to this Court at Charlotte.
In the said order leave was granted to plaintiff to file a motion to remand at the next term of this Court, and such motion was duly made and is now before this Court for determination.
This order was not recognized and observed by the State Court, which declined to relinquish jurisdiction on the grounds insisted (919) upon by the plaintiff:
"1st. That the O. R. C. R. R. Co. is a corporation and citizen of North Carolina.
"2d. That this fact also appears in the records and pleadings."
From this order in the State Court the defendant prayed an appeal, which was allowed, and the clerk was directed to send up a full transcript of the record and all papers filed in the case.
On a hearing in the Supreme Court in the term just closed the Court affirmed the order of the court below, not upon the grounds stated in the
order appealed from, although fully presented in the record, briefs, and argument before the Court, but upon a defect that appeared in the proceedings of this Court for the removal of the cause.
I concur in this decision of the Supreme Court founded upon the fact that "it does not affirmatively appear, either in the petition or in the order of removal, or anywhere else in the record, that the diverse citizenship of the parties existed also at the time of the commencement of the action."
This decision is not important if the substantial grounds set forth in the order of the State Court are not well founded, for as the case was properly retained and is still pending in the State Court, and this Court acquired no jurisdiction, by reason of its defective proceedings, the defect mentioned could be remedied by the defendant filing a new petition, alleging the facts omitted by inadvertence, and obtaining a correct and legal order of removal, for common justice would require that the defendant should not be deprived of a substantial legal right by the nonobservance of his counsel and the Court of a matter that is to some extent often refined and technical.
The material question law for this Court to decide on the (920) pending motion to remand is whether the defendant is a foreign or domestic corporation before allowing a new petition to be filed.
It is insisted on the part of the plaintiff that defendant is a domestic corporation for the purposes of this action, because in its answer it did not specifically answer to a positive allegation in the complaint that "it is a corporation incorporated under the laws of North Carolina, owning and operating a railway and doing business in said State as a common carrier of passengers and freight," etc.
To this allegation the defendant made answer that it "has not sufficient knowledge or information to deny or admit this allegation of the complaint, and denies the same."
This Court is of opinion that this general denial by the defendant of the allegation of its legal existence as a domestic corporation is sufficient, and the only matters of fact admitted were due service of process and that it was an organized association acting as a corporation within this State. The plaintiff, on objection to this general denial of matter of law as indefinite and uncertain, could not on motion have obtained an order on defendant to make the answer more specific as to the legality of its domestic corporate existence, for the allegation contains matter of law. Matters of law, or mere inferences of law, are questions to be judicially noticed and determined by the court, and such matters which are not proper subjects of traverse are not taken as admitted by pleading over. This matter of law was distinctly presented in the order of the State
Court appealed from, and was the material point in the case; and the fact that the State Supreme Court, after full argument of counsel, failed to make adjudication of the point, tends strongly to show that the Court regarded the question of law as a matter of some difficulty and importance.
A railroad corporation is an artificial person, created by positive (921) law and invested with franchises involving specific powers and privileges conferring some of the attributes of sovereignty, to be exercised primarily for the benefits and advantages of the public. Such corporate franchise can never arise and be invested by any kind of implication.
If the defendant is not a domestic but a foreign corporation, its failure in its answer to make specific denial of a direct and positive allegation of matters of law in the complaint did not estop it from claiming a right of removal of this case from the State Court to this Court, under the provision of the act of Congress of 13 August, 1888.
The chief ground for the motion to remand — strongly insisted upon by counsel of plaintiff — is that the defendant, at the time of the injury sustained by plaintiff's intestate, was a domestic corporation duly incorporated under the laws of the State of North Carolina, owning and operating a railway, and doing business in said State as a carrier of passengers and freight, etc.; and, being in fact and in law such domestic corporation, it was not entitled, under the said act of Congress, to the order of removal heretofore made by this Court, which has not now jurisdiction to retain and dispose of this case.
I have examined and considered this question of law with more than ordinary care, as the counsel of defendant in their briefs and arguments insisted that this Court, in Hudson v. R. R., decided "that, for jurisdictional purposes, the C. C. C. R. R. Co. was a foreign corporation within the State of North Carolina, and was a citizen of South Carolina, and that the act of the General Assembly of this State amounted only to a license, and did not create a new corporation."
I have examined such case reported in 55 F. 248, and (922) find that the Court decided that said railroad company was a citizen of South Carolina and had a right of removal of the case from the State to the Federal Court. The question as to its citizenship in this State was not presented on the trial, as the injury sued for in the State Court occurred in South Carolina. On a petition of plaintiff to have his judgment declared to be a lien on the property of the defendant under the laws of this State, I referred this question to the Circuit Court of South Carolina, having original and prior jurisdiction of the subject-matter. Ex parte Hudson, 61 Fed., 369.
Many motions were made in this Court before the trial, and in some of them I may have expressed views as stated by counsel, and according to my recollection such were my impressions, but the question was not fully argued and decided.
It now appears from documentary proofs before this Court that the General Assembly of South Carolina, by an amendatory act of 22 December, 1885, recognized the preexisting corporation of the Georgetown and North Carolina Narrow Gauge Railroad Company, and gave it the name of the Charleston, Cincinnati and Chicago Railroad Company. Previous to this date there were existing in the State of North Carolina two duly chartered and organized domestic corporations, respectively known as the Rutherford Railway Construction Company and the Rutherfordton, Marion and Tennessee Railway. These domestic corporations were desirous of consolidating with and merging into the said Charleston, Cincinnati and Chicago Railroad Company, so as to make a continuous line, and to extend the said road into and across the State of North Carolina, and to enable said road to be continued across the States of Tennessee, Virginia, and Kentucky to the Ohio River.
In September, 1886, terms of consolidation were agreed upon (923) by these respective railroad companies which were duly approved, ratified, and confirmed by an act of the General Assembly of North Carolina of 17 February, 1887 (Laws 1887, chapter 77).
By this act the Charleston, Cincinnati and Chicago Railroad Company was recognized and adopted as one corporation, with its consolidated organization for the purposes of the general management of its property, and conducting its business in the several States through which its railway should be constructed and operated. As it acquired the property and franchises of two domestic railway corporations of this State, and was also in express terms authorized and empowered to have and exercise all the powers, privileges, and franchises to the extent conferred on the North Carolina Railroad Company and other railroads in the chapters of the State Code entitled "Corporations" and "Railroads," it became a domestic corporation, to be governed by the laws of this State as to its property and business situated and transacted therein; and it also became liable to answer for all acts done within such territorial limits as a domestic corporation. Missouri Pacific Railway v. Mich., 69 Rep., 753, and cases cited.
This act was not a mere enabling act, granting a license to a foreign corporation to operate a railroad and transact other business in this State under chartered powers derived from the State of South Carolina, for this legislative grant conferred other important franchises which were accepted and exercised in this State in the construction and operation
of its railway to as full an extent as could have been done by a North Carolina corporation under the most liberal charters ever granted. Clark.v. Barnard, 108 U.S. 436.
This act expressly authorized this consolidated corporation to mortgage its road and property to secure its indebtedness. In order to carry on the contemplated plans and purposes of consolidation (924) and extension of its railroad in and through the several States mentioned, this corporation, on 9 August, 1887, executed a mortgage in the nature of a deed of trust whereby it conveyed to the Boston Safe Deposit and Trust Company all of its property and franchises, etc., to secure the payment of certain specified first mortgage bonds: and said mortgage was duly delivered and recorded in the manner required by the laws of the several States through which its railroad extended. This corporation having failed to make payment of interest on its bonds at the time and in the manner provided for in the mortgage, the whole debt secured became due and payable. The mortgagee, after reasonable diligence, duly instituted proceedings in the United States Circuit Court in the district of South Carolina to obtain a decree for foreclosure and sale of the property and franchises conveyed as a security for the payment of the bonds mentioned in mortgage; and on 6 February, 1893, a decree was made for the purpose of affording the relief prayed for by mortgagee.
In this decree it was ordered, adjudged, and decreed "That the Charleston, Cincinnati and Chicago Railroad Company is a corporation organized and charted by the State of North Carolina, South Carolina, trolling, and operating a railroad, etc., and the special master appointed was authorized and directed to advertise the premises, property, and franchises of said company, and make sale as provided in decree. This decree was also entered as a decree of the Circuit Court of this district in the ancillary proceedings which had been regularly instituted and conducted. By virtue of this decree the special master made sale on 2 Hillier, of Boston, conveying to him all the property and franchises (925) of the Charleston, Cincinnati and Chicago Railroad Company.
The said Charles E. Hillier, after having bee put in possession of said property and franchises, determined to form a new corporation in accordance with the laws of the State of North Carolina. 1 N.C. Code, sections 697, 698, and 2005. In compliance with these sections, on 20 June, 1894, he executed under his hand and seal a declaration constituting a new corporation, to be invested with all the rights, powers, privileges. and franchises of the Charleston, Cincinnati and Chicago Railroad Company in this state. For the purpose of effecting a complete
working organization he gave this new corporation the name of Ohio River and Charleston Railroad Company of North Carolina; appointed six directors and designated the amount of capital stock and the number of shares into which the capital stock should be divided, and caused a certificate of such organization to be duly filed in the several counties of North Carolina in which the said railroad was situated.
On 13 November, 1894, the said Charles E. Hillier executed and delivered a deed to the Ohio River and Charleston Railway Company of North Carolina, conveying to said company so much of the property and the rights, privileges, and franchises of the Charleston, Cincinnati and Chicago Railroad Company as were conveyed to him as purchaser by the special master, which are situated in the State of North Carolina, or were derived from the laws of said State.
The granting of the rights, privileges, and powers which constitute the franchises of a corporation are matters under the control of the Legislature, and, within the limits of constitutional power, the Legislature may adopt by statute any mode of conferring and investing such corporate franchises or continuing the existence of those franchises previously (926) granted, which had been acquired by a purchaser under execution sale or under sale made by the decree of a court having authority by virtue of the laws of the State to order sales. Reasons of public policy require the continuance of railroads in a condition of useful and efficient operation, and statutes enacted for such beneficial purposes should be liberally construed in ascertaining the intention of the Legislature for preserving the full accommodations and advantages arising to the public from such corporations. After careful consideration I am of opinion that the said proceedings of Charles E. Hillier were regular, sufficiently specific, and in accordance with the laws of this State; that the former charter of the C. C. C. R. R. Co. has been dissolved in accordance with State laws, and that said company no longer has corporate existence in this State; that the O. R. C. R. R. Co. is a separate and independent domestic corporation, and has no other connection or relation with the dissolved C. C. C. R. R. Co., except it is legally invested with the property and franchises that formerly belonged to the said dissolved corporation. There can be no doubt as to the power of the Legislature under the present Constitution of North Carolina to repeal and dissolve railroad charters granted since the adoption of said Constitution. R. R. v. Rollins,82 N.C. 523; Young v. Rollins, 85 N.C. 485; Marshall v. R. R., 92 N.C. 322.
I have carefully examined and considered the cases cited by counsel of defendant and have the opinion that the principles announced do not conflict with the legal views I have expressed in relation to the facts of
the case before the Court. I will cite only one case mentioned in briefs, as it refers to other cases relied upon by counsel of defendant. Goodlet v.R. R., 122 U.S. 391.
I concur with counsel of defendant in their opinions that the Legislature of this State has, in sections 1932 to 1934 of Code, manifested a clear and positive intention that railroad corporations (927) shall not be created by the action of associated persons otherwise than as provided in such sections. Those sections refer only to the mode and manner of creating railroad corporations, and not as to the methods of continuing
the existence and operation of railroad franchises in the hands of purchasers at judicial sales. The property of railroads must be kept in association with their franchises to preserve value, to give credit to such corporations, to secure creditors and keep railroads in operation for the benefit of the public, which was the primary object of the Legislature in bestowing such corporate franchises. Such legislative purpose is clearly manifested in The Code of North Carolina in sections 697, 998, 2005, and other sections. Gooch v. McGee, 83 N.C. 59.
The defendant in its petition for removal claimed to be a citizen and resident of the State of South Carolina. It could not found this claim upon any relation which it had to the C. C. C. R. R. Co. for all of the title, estate, interest, and equity of redemption of this company to the mortgaged premises, rights, property, assets, and franchises were barred and forever foreclosed by the decree for sale and foreclosure made in the Circuit Court, which was duly executed by the special master.
In the briefs of counsel, residence and citizenship in South Carolina are founded upon the alleged facts that Charles E. Hillier after his purchase "obtained a charter by special act of the Legislative of Virginia, approved 12 February, 1894, and filed certain articles of incorporation with the Secretary of State of South Carolina under the laws of said State. He, the said Hillier, having conveyed the property and franchises of his said railroad purchase to the Ohio River and Charleston Railway Company."
Conceding these alleged to be fully established, I am of opinion that the foreign corporation organize under that act has never been recognized and adopted by the Legislature of this State, and (928) has not superseded or destroyed the domestic corporation organized by the said Hillier under the laws of this State, or absolved the Ohio River and Charleston Railway Company of North Carolina from the discharge of the functions, duties, obligations, and responsibilities which were assumed by its domestic organizations. The said Hillier had no authority or power to dissolve such domestic corporation or transfer its franchises and property without the consent and approval of the Legislature of North Carolina.
As the proceedings for removal of this case were defective and ineffectual, and the case is now rightfully pending in the State Court, I cannot make an order to remand.
It is therefore considered and ordered that the proceedings in this Court for removal be dismissed with costs, to be taxed against the petitioner, the defendant in this case.
Cited: James v. R. R., 121 N.C. 529 Harrell v. R. R.,135 N.C. 604.