ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA.
MR. JUSTICE SHIRAS delivered the opinion of the court.
Edmund Pendleton brought two suits in the Circuit Court of Wythe County, Virginia, against the Norfolk and Western Railroad Company to recover statutory penalties for charging him more than the rates prescribed by law.
On behalf of the defendant it was not denied that the sums charged were in excess of the rates fixed by the general law of Virginia, dated January 14, 1853, c. 57, Acts of 1852-3, p. 62, regulating tolls upon railroads, but it was claimed that the defendant railroad company, as the legal successor of certain other companies, whose charters empowered them to fix their own charges, was not subject to the provisions of that statute.
The trials resulted in judgments against the railroad company, which were on error taken to the Supreme Court of Appeals of the State of Virginia, from whose judgments,
affirming those of the trial court, writs of error were sued out of this court.
The record discloses the following facts: On March 11, 1837, the legislature of Virginia passed an act entitled "An act prescribing certain regulations for the incorporation of railroad companies," in the twenty-fourth section whereof it was provided that it should be lawful for the president and directors of the company to charge certain rates of toll for the transportation of persons, not exceeding six cents per mile; for the transportation of goods, produce, merchandise, and other articles, except gypsum and lime, not exceeding eight cents per ton per mile; for the transportation of gypsum and lime, not exceeding four cents per ton per mile; and for the transportation of the mail such sum as they may agree for; and in the twenty-fifth section it was provided that when the net profits shall amount to a sum equal to the capital stock expended, with six per cent per annum interest thereon, then the tolls which the president and directors shall be entitled to demand and receive on their railroad shall be fixed and regulated from time to time by the board of public works, or by such agent or agents as may be appointed by the legislature for that purpose, so as to make them sufficient to pay a net profit of six per cent per annum on the capital stock, etc.; and in the thirty-fifth section it was provided that any part of any charter or act of incorporation granted agreeably to the provisions of the act "shall be subject to be altered, amended, or modified by any future legislation as to them shall seem proper, except so much thereof as prescribes the rate of compensation or tolls for transportation." Act of March 11, c. 118, Laws of 1836-7, 101, 110.
On March 24, 1848, and while the act of 1837 was in force, the legislature of Virginia passed an act incorporating the Lynchburg and Tennessee Railroad Company, by the second section whereof it was provided that whenever twelve hundred shares of stock shall have been subscribed, the subscribers, their executors, administrators, and assigns, should be declared to be a body politic and corporate, such should be "subject to all the provisions of the act prescribing certain general regulations
for the incorporation of railroad companies, passed March 11, 1837, and the supplements thereto;" and by the third section it was provided that "the tolls of said company shall be regulated and prescribed by the president and directors of said company: Provided, however, That if at any time hereafter the rates of toll and transportation shall enable the president and directors, after payment of all necessary expenses, and after setting apart a fair and reasonable sum for renewal and repairs, to divide more than fifteen per cent on their capital stock invested, then the legislature may regulate and reduce the tolls and transportation so as to enable the company to divide fifteen per cent and no more."
Under these acts a railroad extending from Lynchburg to Bristol, a point on the line between the States of Virginia and Tennessee, was built and operated by the Virginia and Tennessee Railroad Company, from 1855, the date of its completion, till November 12, 1870. The Atlantic, Mississippi and Ohio Railroad Company was incorporated under the provisions of an act of the general assembly of the State of Virginia, passed June 17, 1870, and entitled "An act to authorize the formation of the Atlantic, Mississippi and Ohio Railroad Company." Laws of 1869-70, c. 143, p. 181.
The avowed object of the organization of this company was to acquire the property and franchises of the Norfolk and Petersburg Railroad Company, whose railroad extended from Norfolk, Virginia, to Petersburg; of the Southside Railroad Company, owning a railroad between Petersburg and Lynchburg; and of the ...