LIBRARY
BUREAU OF RAILWAY ECONOMICS
WASHINGTON, D. C.
MEMORIAL
Troy and Greenfield Railroad Company.
Allen, Lane & Scott, Printers, 233 South Fifth Street, Philadelphia.
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TO THE HONORABLE THE SENATE AND
HOUSE OF REPRESENTATIVES OF THE
COMMONWEALTH OF MASSACHUSETTS.
The petition of the Troy and Greenfield Railroad Com¬
pany respectfully represents :—
I. That under and in pursuance of the provisions of
the act of April 5th, 1854, the Troy and Greenfield Rail¬
road Company executed and; delivered a mortgage to
the Commonwealth of Massachusetts, under date of
January 28th, 1855 ; and that under and in pursuance of
subsequent legislation, other mortgagës upon all the
property of the corporation were executed and delivered
by the corporation to the Commonwealth on the 6th
July, : i860, and on the 5th April, 1862; and that under
the conditions and engagements of the act of 25th April,
1862, entitled "An act providing for the more speedy
completion of the Troy and Greenfield Railroad and the
Hoosac Tunnel," the said The Troy and Greenfield Rail¬
road surrendered posséssion of all its property to the
Commonwealth of Massachusetts, and the commission¬
ers appointed by authority of said act, took complete
possession of all the property, rights, and interests in¬
tended to be conveyed by said mortgages, and proceeded
to complete the said railroad and tunnel, and, on or
about the 30th June, 1876, opened the 'same for use,
* \
II. That by the express language of the second section
of the said act, it was declared that the right of redemp¬
tion should not be barred until after ten years had elaps'ed
after said road and tunnel were completed. In Decem¬
ber, 1878, ydur petitioner applied to the Treasurer of the
Commonwealth of Massachusetts for an account of thé
2
indebtedness due to the Commonwealth, under the several
mortgages mentioned, and offered to pay the amount that
should be found due. The treasurer replied that he did
"not feel authorized by law to state an account and fix the
amount to be paid, in redemption of the mortgages held
by the Commonwealth ; and thereupon a bill in equity
was' filed by your petitioner in the Supreme Judicial
Court, in the county of Suffolk, praying for an accounting
and tendering the repayment of the amount that should
be found to be due. To this bill a demurrer was filed by
the Attorney-General on behalf of the Commonwealth,
arid, upon argument, the said court dismissed the said
bill for want of jurisdiction.
III. That in the year 1804, the Legislature of Massa¬
chusetts had passed an act providing that whenever
any mortgagor who had mortgaged any real estate to the
Commonwealth should desire to redeem the same, and
there should be a disagreement between the treasurer and
himself as to the sum equitably due upon said mortgage,
/
he should be at liberty to file a bill in equity for the re¬
demption thereof in the Supreme Judicial Court, in the
county of Suffolk : and it was believed by all persons
interested in the Troy and Greenfield Railroad Company,
at the time of the passage of the act of 28th April, 1862,
and of the surrender to the State of the property of the
said company, that the right of redemption secured by
the second section of said act meant a right of redemp-^
tion, which could be enforced, in a court of justice, under-
thé authority of that statute, as a legal right ; but, by the
decision of the said court, it is now established that your
petitioner is without remedy at law.
IV, That by the correspondence with the said Treas- ,
urer of the Commonwealth, it will be seen that there j
was a disagreement as to the principles upon which, the^
3
accounting between the Commonwealth and your peti¬
tioner should be settled.
These questions are purely legal questions, which can
only be properly determined by a court of justice, arjd
with which the Legislature of Massachusetts has no:con-
stitutional right to deal. By its legislation for nearly a
century the Commonwealth of Massachusetts has recog¬
nized- that it was its duty to submit questions" this
character to the decision of the courts, and every civi¬
lized government now acknowledges the duty of furmsfw
ing a remedy, by process of law, to its subjects or citizens,
in' such cases.
It was by the explicit stipulation that your 'petitioner
should have a right of redemption, that the Common¬
wealth of Massachusetts obtained - possession of this
property. * The true title still-belongs to the Troy and.
Greenfield Railroad .Company. The nominal title, held
by the Commonwealth, is held simply in pledge, to se¬
cure the amount due. There is a difference of opinion
as to what that amount actually is, and no method has
been provided for settling that difference. The executive
officers of the Commonwealth disclaim having authority
to act, and the court has decided that it has no jurisdiction
over the controversy. Unless, therefore, your Honorable
Bodies grant relief, your petitioner will be remediless. If
the amount were once ascertained, and the Commonwealth
should then refuse to surrender possession after tender
of the amount agreed to be due, such retention of posses¬
sion would be a simple act of confiscation ; and it is
respectfully submitted, that unless your Honorable
bodies will now provide a means whereby, according to
due course of law, that amount can be ascertained, the re¬
sult to your petitioner and the character of the transaction
will be practically the same as if there were no dispute
as to the indebtedness, but a simple exercise of sovereign
power, regardless of right, in reliance upon immunity
from legal liability.
4
But it can not be supposed or assumed that the Com¬
monwealth of Massachusetts will appropriate to itself or
retain possession of property which does not belong to
it, or that it will refuse to furnish through its courts the
remedy for redemption which the contracting parties,
viz., The Commonwealth of Massachusetts and the Troy
and Greenfield Railroad Company, both understood that
said company had at the time the mortgages above re¬
ferred to were made and possession under Act of 1862
given.
Your petitioner therefore prays that jurisdiction may
be conferred, by law, upon the Supreme Judicial Court,
to hear and determine the rights of your petitioner in
equity to make the redemption reserved to your,peti¬
tioner under said mortgage and by the act of 1862, by
proper proceedings in equity before said court.
And your petitioner will ever pray,
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