Birmingham Union Railway Co. v. Elyton Land Co.

McCLELLAN, J. — Counsel for appellant, in the brief filed on this application, call our attention to the fact that in one brief originally, filed in the cause they insisted that the act of December 10th, 1886, conferred upon street railways the power of eminent domain which is sought to- be exercised in this case. The only brief fox-appellant found in the record when the case was considered, however, made no reference to • said act, and we decided the case on the Code provisions and the act of February 26th, 1887, to which alone that brief called our attention. As the case is xxow preseixted by the brief— axxd as it was presented by the oxiginal bx-ief, which was lost — we will reconsider it, taking into account the act of December 10th, 1886. It is not controverted that that act in terms confers power upon street railway companies to condemn rights of way under sections 3207 et seq. of the Code. Its langxxage is : “Street railroad companies organized and incorporated under the laws of Alabama, may acquire by gift, purchase or condemnation, real estate in this State, for the right of way of street railroads, a strip, tract ox- parcel of land, not exceediixg thirty feet in width, for the right of way for said street railroads, and said street railroad companies shall have the right to condemn and take possession of said land, on payment to the owner thereof, a just compensation, in the same manner as now provided by law for taking private property for railroads axxd other public uses, in Article II, chapter 17, title 2, part 3 of the Code.” — Acts of 1886-87, p.122. It is insisted, however, that,this statute is violative of section 2, Article IV of the constitution, which ordains that “No law shall be revived, amended, or the provisions thereof extexxded or conferred, by reference to its title only; but so much thereof as is revived, amended, extexxded or conferred, shall be re-enacted and published at length,” and therefore void. For the reasons given by the writer in the case of Bay Shell Road v. O’Donnell, 87 Ala. 376, in consonance, it seemed to him, with the [74] principles' declared in the earlier case of Stewart v. Commissioners of Hale County, 82 Ala. 209, he is of opinion that the statute set out above is open to the constitutional objection made to it, and is wholly invalid, being an attempt to extend the provisions of the Code as to ad quod damnum proceedings to street railroad companies by a mere reference, or rather a mere attempt to refer — for the reference is inaccurate — to the article, chapter, &c., of the Code in which those provisions are contained. But my associates entertain a different view, holding this is not such an extension or conferring of such provisions as comes within the meaning of the constitution, and basing this conclusion upon the authority and reasoning of the case of State v. Rogers, 107 Ala. 444. The circuit court must, therefore, be held to have erred in sustaining the demurrer to appellant’s petition and dismissing the same. Reversed and remanded.