The Richmond, &c. Railroad Co. v. The Louisa Railroad Co.

to whatever is necessary to make that grant effectual and protect them in the enjoyment of their rights. Babcock v. Western Railroad Corporation, 9 Metcalf, 556; Blakesley v. Whieldon, 1 Hare, 180; 23 Eng. Ch. Rep. 180; Green v. Biddle, 8 Wheat. 75; Bronson v. Kinzie et al. 1 How. 319; McCracken v. Hayward, 2 How. 612.

4. That the court, in respect to those matters which are distinctly raised, should declare the right of the plaintiffs, and upon such declaration decree an injunction in terms ascertaining the extent of the right. Cother v. The Midland Railway, 2 Phill. 472; 22 Eng. Ch. Rep. 472.

5. That from the facts stated in the bill, and not denied, and also from the map of Mr. Crozet, it is obvious that the probable effect of allowing the defendants to have a railroad between the city of Richmond and the city of Washington, for that portion of said distance which is from the junction to Richmond, will be to diminish the number of passengers travelling between the city of Richmond and the city of Washington, upon the plaintiffs' railroad, or to compel them, in order to retain such passengers, to reduce the passage-money. And if such would be the probable effect, the defendants (as is contended in the petition, as well as in the bill,) should until the expiration of the thirty years mentioned in the plaintiffs' charter, have been enjoined from constructing their railroad for said portion of the distance. Rankin v. Huskisson, 4 Sim. 13; 6 Eng. Ch. Rep. 7; Blakemore v. Glamorganshire Canal Navigation, 1 Myl. & Keen, 154; 6 Eng. Ch. Rep. 544, and cases before cited. And the defendants having, notwithstanding the warning given by the letter of the 18th of December, 1848, and by the institution of this suit, proceeded with such construction, they might and should, at the hearing, have been enjoined, and ought now to be enjoined from further constructing or using their railroad for that portion of the distance. Lane v. Newdigate, 10 Ves. 192. And if the construction has been completed, the injunction against the use should continue not only until the expiration of said thirty years, but for such time after the thirty years as it may reasonably be supposed would be occupied in the construction, if it had not taken place within the thirty years. For, as the bill insists, the protection will not be preserved to the extent to which it is granted, if immediately on the expiration of the thirty years there can be opened for transportation, a railroad constructed within that period.

6. That although an injunction to the extent mentioned in the preceding point would, as contended in the petition, give no higher security to the plaintiffs than was intended by the legislature, yet if the court do not grant it to that extent, it

The Richmond, &c. Railroad Co. v. The Louisa Railroad Co.

should, at least, prohibit acts, the probable effect of which would be to diminish the number of passengers travelling between the city of Richmond and the city of Washington, upon the plaintiffs' railroad, or to compel the plaintiffs, in order to retain such passengers, to reduce the passage-money; it should make such prohibition to whatever extent may be necessary to protect the plaintiffs in the enjoyment of their rights.

7. That the prohibition should be of all transportation of passengers on the defendants' railroad between Richmond and the junction; 1st, upon the ground taken in the bill, and the answer, that he who travels only over a portion of the railroad, equally with him who travels over the whole line, is, within the meaning of the 38th section of the plaintiffs' charter, a passenger travelling between (that is over the whole, or some part of the intermediate space between) the cities of Richmond and Washington; a ground sustained in part by the judge, and strongly fortified by the views presented in the petition, and, 2d, upon the ground that such prohibition is necessary to protect the plaintiffs in respect to passengers travelling the whole distance between those cities. For, in the absence of such prohibition, the Louisa company may take passengers at reduced rates between Richmond and the junction, as pointed out in the bill, and between the junction and Washington or Alexandria give through tickets in conjunction with the Crange and Alexandria railroad.

8. That if the court do not prohibit all transportation of passengers on the defendants' railroad between Richmond and the junction, it should, at the least, prohibit the transportation by the defendants on their railroad of passengers travelling between the city of Richmond and the city of Washington. The necessity for an injunction to this extent is not at all obviated by the concession remarked on in the answer. Nor is the remark of the judge, that "to award the injunction now would be to inflict a present, certain, and serious injury upon one party, to prevent a remote, uncertain, and possible injury to the other," well founded as to the injunction here proposed. For no injury is inflicted on the defendants by requiring them to abstain from what it is their duty to abstain from. While on the other hand, a remedy far more effectual than any at law can be had in equity through its restraining power, which besides awarding the injunction as here proposed, may, and it is submitted, should in aid of such injunction, prohibit through tickets between Richmond and Washington, at points south of Richmond and north of Washington, by the Louisa road.

9. That the final decree in these suits. in the State court, should be reversed in the Supreme Court; and this court should

The Richmond, &c. Railroad Co. v. The Louisa Railroad Co. proceed to pass such decree as the State court which made such final decree should have passed, to wit: in the second case, for obvious reasons, some of which are stated in the answer to the bill in that case, it should dissolve the injunction and dismiss the bill with costs; and in the first and principal case, it should award such injunction as is proper, and decree against the defendants the costs. The writ of error issued under the act of Congress, is to be so used as to effect the object. Gelston v. Hoyt, 3 Wheat. 303. The mandate for execution should issue to the Circuit Court of Chancery for the county of Henrico. Clerke v. Harwood, 3 Dall. 342.

The points made by the counsel for the defendants in error, were the following:

I. That this court has no jurisdiction of the case, the court of final resort in Virginia not having pronounced a final decree or judgment, but having simply refused to relieve the complainants by injunction, in the face of the statute of the State. This refusal to allow an appeal is no affirmance of the reasons of the court below.

II. That the appellants have not such a monopoly as they claim. That the grant which they insist upon as contained in the 38th section of their charter is void: 1. Because it is unintelligible. 2. Because it is impracticable, as no standard is furnished in the charter, or elsewhere, by which any tribunal can determine what is the extent of the grant or its limitation; and, therefore, no means exist by which to determine when the grant is violated, and when not, according to its terms; no distance being furnished within which, to the right or left of the existing road, another road shall not be made. The franchise claimed is, therefore, undefined, and therefore void; or, if defined, as the appellants insist, it confers upon them an unlimited power over the territory, highways, and people of Virginia, and over the legislative power of the State, and the power to advance and improve the State, which the legislature had no power to confer, and therefore it is void.

One legislature had no power to say to all future legislatures that there should never be more than one railroad between Richmond and Washington, without regard to the wants of the country and the capacity of this road to meet them; or that there should be but one for thirty years; and still less could it transfer the right so to declare to a petty corporation. The change of the form does not increase the power; the defect still is a want of power. The name of "contract" cannot conceal or justify the usurpation. The power of internal improvement over the State generally, or over a large portion of it, cannot be bartered away by the legislature. The legislature is

The Richmond, &c. Railroad Co. v. The Louisa Railroad Co.

clothed with power for the benefit of the people, and the improvement of the State, and a law declaring that it shall not be improved, would be a gross abuse, a usurpation, in fact, of power, which would be void. To that extent the monopoly here claimed goes, if sustained.

III. If the grant is worth any thing, it is only by giving it a reasonable interpretation, having regard to the end proposed, the general interest of the community, and the power of the legislature; and thus interpreted, it only means that the appellants should have a monopoly of the passengers travelling from Richmond to Washington directly, or to such intermediate point as the Fredericksburg railroad could carry them to. This interpretation the appellants deny, and thus make their grant unintelligible. It was not intended to forbid the construction of a railroad to Winchester, or the Ohio, because, when a passenger reached either of those points, he might get on the Baltimore and Ohio road, and thus get to Washington. Nor was it intended that the people residing five, ten, or twenty miles east and west of the Fredericksburg road, should be denied for thirty years the use of a railroad, unless they would first travel to, and then travel upon, the Fredericksburg railroad.

Taking this view, the most favorable for the appellants which can be taken, the decree in Virginia is correct.

IV. The grant to the appellants, under the most enlarged and extravagant view of it, relates only to the profits of passengers. It has no reference to freights, and was never intended to have, and if intended, cannot, by its words, have the effect to denude the legislature of the power to authorize a railroad to carry agricultural products, and other freights; and therefore the decree in Virginia was right. The court had, therefore, no power to prevent the construction of the road. If it could do any thing, it could only restrain the improper use of it, when a proper case should be made, which was not made by the appellants.

V. There was no violation of the rights of the appellants in authorizing the Louisa Company to cross their road, because they could do so only upon condition of paying the value of the privilege, even to the extent, if necessary, of the entire value of the franchise. A franchise is but a qualified property, and cannot, therefore, be more sacred and inviolable than the unqualified property of the owner in fee, whose property is condemned for the purposes of the franchise; over every franchise the "jus publicum" must prevail, as it does over all other property. 3 Leigh, 318; 11 Leigh, 42; 11 Peters, 544, 549, 567, 638, 641, 646; 6 How. 507.

If the opposite conclusion can be maintained, then the munstrous result follows, that the railroad of the appellants is an

The Richmond, &c. Railroad Co. v. The Louisa Railroad Co.

impassable barrier between Eastern and Western Virginia, which can never, at any point, be crossed by another railroad. The legislature never intended to erect such a barrier, and had not the power to do it if they would.

VI. If the appellants sustained any wrong, their remedy was not by injunction. 1. Because an injunction must have inflicted enormous and certain mischief upon the appellees, while the injury to the appellants, if it was denied, was uncertain, hypothetical, and might never occur, and could be redressed without an injunction. In such cases an injunction is never awarded.

She

2. Because the chancery courts in Virginia have, by law, no jurisdiction to grant an injunction in a case like the present. (See acts referred to in the answer, viz., 13th sect. of Gen. Railroad Law, 1837, and 18th sect. of the Charter of the Louisa Company.) And Virginia alone can prescribe the jurisdiction of her own courts. She can mould her remedies as she pleases. can abolish her chancery courts as New York has done, or she can define their jurisdiction at pleasure; and this court has no power to say that she shall have chancery courts, or, if she has them, they shall exercise a jurisdiction forbidden by her laws. She may be bound to provide some remedy for wrong, but she is the exclusive and sovereign judge of the form of the remedy. But she is not bound to furnish any remedy for the courts of the United States. The judiciary act of the United States applies only when she does provide a remedy.

VII. As to the last bill filed by the appellants, this court can have no jurisdiction. A refusal of an injunction is not a final decree under any interpretation of those words, for a new bill may be presented every day, and the refusal of one is no bar to another. A court may refuse an injunction, and yet at the hearing decide for the plaintiff.

The Supreme Court of the United States does not sit to revise the Virginia chancellors upon applications for injunctions. The following authorities will be relied upon in the argument by the counsel for the appellees, viz.:

I. 6 Howard, 209; Gibbons v. Ogden, 6 Wheaton, 448.

II. 11 Peters, 467, 547; 6 Cranch, 133, 135; 3 Dall. 388; Vattel, 4, 14, 40, 41; Domat, book 1, tit. 6, sect. 1; Puffend., book 8, c. 5, sect. 7; Attorney-General v. Burridge, 10 Price, 372, 373; Locke on Government, 304, 307.

III. Johnson's Dictionary" Between."

V. Vattel, 40, 41, 103; Hawkins v. Barney's Lessee, 5 Peters, 457; Coats v. The Clarence Railway Co., 1 Russell & Mylne, 181.

VI. Eden on Injunction, 236; Earl of Ripon et al. v. Hobart, 3 Mylne & Keen, 169, 174; Attorney-General v. Nichol, 16