Renfroe et al. vs. Colquitt, governor.

under the idea that the joint resolution of 1871 was still in force, which disclaimed any claim of the state to interest in such cases. The act of 1876 repealed that resolution, and it was the duty of the treasurer to know. On a criminal charge, as on his impeachment, the fact that Mr. Renfroe was a member of the legislature of 1871, and was ignorant of the subsequent law, may have thrown. light on his intent to do wrong, and thereby have been considered on that great issue before the senate, though even in criminal cases ignorance of the law is generally no excuse; but on a civil case for money growing out of his office, ignorance of all the law pertaining to that office can be no sort of legal defence to the suit.

Thus regarding the case as controlled by the statutes of the state, I deem it unnecessary to examine critically the common law of England or the adjudications thereon in the United States or any of the American states. I add simply that the criminal statute of 1878, making such conduct felonious, expressly provides that the civil recovery shall not be affected thereby Code, section 4425(b). That act, however, was passed after this interest was made and received, and could hardly affect the result here, even if that provision was not in it. Appending hereto the citations of the attorney general and Mr. G. N. Lester, for the state, of authorities outside of our state, and some of our own, as they may throw further light on a broad view of the entire subject, I close what a sense of duty to the state required me to say, in order that views of law and construction of statutes damaging to the public, in my judgment, might not be cited hereafter as carrying, by a unanimous judgment of this bench, the force of a legislative enactment. Vol. 4 B., Myer's Fed. Dec., Secs: 380, 382, 396, 397, 405, 407; 10 Otto 8; 56 Ga., 290; 60 Id., 296, 318; Williams Ext'rs, 1844; 6 Lansing, p. 33; 10 Central Law Journal, p. 34; Brandt on Suretyship, 456, 455; 17 Ala., 806; 46 Pa. St., 452, 209; 2 Gratt., Va., 134; 53 Ind.,

Angier et al. vs. The East Tennessee, Virginia and Georgia Railroad et al.

ANGIER et al. vs. THE EAST TENNESSEE, VIRGINIA AND
GEORGIA RAILROAD et al.

1. Where a judge of the superior court approved a bond tendered for the purpose of removing a cause to the circuit court of the United States, and thereby virtually gave judgment for the removal, this was a final order disposing of the case in the superior court, and is reviewable in this court.

2. To divest the courts of this state of jurisdiction, a petition must be filed, which, taken in connection with the record, makes a case for removal; and upon this petition and record the state court must pass.

3. Where the charter of a Georgia railroad corporation conferred the
power to sell its road, charter, franchises and privileges to any
person or corporation, within or without the state, and a foreign
railroad company purchased the rights, titles, properties, fran-
chises, powers and privileges of every description of such Geor
gia corporation, and "assumed all its debts or obligations of every
sort," the two becoming merged and consolidated under the name
of the foreign corporation, under its charter and the charter
granted by the state of Georgia, the purchaser became a domestic
corporation, occupying the place of the vendor.

(a.) Such facts appearing in the record, the purchaser was not enti-
tled to remove a cause against it from the state to the federal court,
on the ground that it was a foreign corporation.
(b.) The permission to purchase the domestic railroad company, with
all its rights and franchises, was an original and direct grant by
the legislature to the appointee of that company, and that ap-
pointee or purchaser, as soon as made, became co instanti the off-
spring of the legislative will of this state; nor does it matter that
the purchaser was not called by name. It was not a mere license
to carry out a power already potential, nor did it take the place of
the vendee company by mere implication, but by direct grant of
power.

4. Although a corporation of New York was joined with the East
Tennessee, Virginia and Georgia Railroad Company (the purchaser)
in this suit as a defendant, no decree could be made in regard to
it independently of the railroad company; and therefore that cor-
poration cannot remove the case to the circuit court.
April 2, 1885.

Railroads. Corporations. Charters. License. LawsStates. Vendor and Purchaser. Before Judge ESTESFulton County At Chambers. January 12, 1885.

Angier et al, te. The East Tennessee, Virginia and Georgia Railroad et al. Angier et al. filed a creditors' bill against the East Tennessee, Virginia and Georgia Railroad and the Central Trust Company, of New York, the latter holding a deed of trust to secure the holders of mortgage bonds. The bill alleged that the railroad was a Georgia corporation, and specifically alleged, in brief, as follows: The road from Rome to Macon was built by the Cincinnati and Georgia Railroad, and the road from Macon to Brunswick was purchased by it. The Cincinnati and Georgia Railroad then sold and transferred all its "rights, titles, properties, franchises, powers and privileges of every description" to the East Tennessee, Virginia and Georgia Railroad, then a Tennessee corporation, and the latter assumed all of the debts, obligations and burdens, and the two became merged under the name of the East Tennessee, Virginia and Georgia Railroad, and the separate existences of the Cincinnati and Georgia Railroad and the Macon and Brunswick Railroad ceased.

The answer denied generally that the East Tennessee, Virginia and Georgia Railroad was a Georgia corporation, but did not deny the sales just above stated.

The judge of the circuit being absent, the judge of the Northeastern Circuit presided at the hearing of the application for a temporary injunction and receiver, at chambers.

On the hearing, a petition and bend for removal of the case to the United States Circuit Court were presented, alieging that the East Tennessee, Virginia and Georgia Railroad was a citizen of Tennessee, and the other defendant of New York. The presiding judge approved the bond and thereby granted the removal. Complainants excepted.

The charter of the Cincinnati and Georgia Railroad Company will be found in the Acts of 1880-1, p. 250 et seq.

VAN EPPS & CALHOUN; KING & SPALDING; E. A. ANGIER; HOKE SMITII, for the plaintiffs in error, cited 60 Ga., 423; 59 Id., 17; 68 Id., 394; 100 U. S., 457; 3 Woods, 128; Acts 1880-1, p. 250, section 2; 14 Minn., 303; 43 Mich., 354; 12

Angier et al. vs. The East Tennessee, Virginia and Georgia Railroad et al.

Wall., 65, 82; 1 Id., 40; 60 Ga., 274; 108 U. S., 436; Mor. Corps., §§536, 539; 65 Penn. St., 205; 67 N. Y., 371; Mor. Corps, §§500, 502, 508, 525; 104 U. S., 5; 1 Black, 287; 13 Wall., 270; 96 U. S., 450; 107 Id., 584; 109 Id., 104; 32 Grat., 394; 1 W. Va., 308; 3 Id., 319.

BACON & RUTHERFORD; HOPKINS & GLENN; HENRY B. TOMPKINS, for defendants, cited 59 Ga., 263, 17; 60 Id., 423; So. L. Rev., N. S., vol. 2, p. 282; Id., vol. 3, p. 3; Dill. Rem. Caus., 91; 103 U. S., 490; 19 U. S. Stats. at Large, sec. 5, p. 472; 6 Wall., 253; 13 Pet., 519; Acts 1847, p. 171; 14 Ga., 336; Acts 1880-1, p. 251; 18 Wall., 670; 9 Ga., 517; 8 Id., 23; 7 Id., 221; 3 Id., 31; 60 Id., 269; 12 Wall.; 13 Id., 270; 10 Otto, 55; 14 Id., 5; 105 U. S., 537; 1 Blatchf., 628; 9 Am. and Eng. R. R. Cas., 201; 93 U. S., 217; 53 Ala., 237; 22 O. St., 428; 2 Dur., 17; 3 Tenn. Ch., 602; 21 Law Rep., 138; 3 Otto, 217; 13 Id., 205.

JACKSON, Chief Justice.

This record makes the question of the removal of a cause in the superior court of Fulton county to the circuit court of the United States for the northern district of Georgia. The judge of the superior court of the Atlanta circuit, which embraces this county, being absent, the judge of the Northeastern Circuit approved the removal bond, and thereby virtually gave judgment for the removal in vacation.

Pretermitting the power of a judge to pass such order by this entry of approval, under the laws of this state, which distinguishes between the powers of court and those of a judge not sitting in term, inasmuch as the judge was sitting as chancellor on the subject of appointing a receiver, the legality of the removal depends on the question whether the East Tennessee, Virginia and Georgia Railroad Company be a domestic Georgia corporation.

1. It is not an open question in this court that the action or judgment of the superior court, such as was had

Angier et al. vs. The East Tennessee, Virginia and Georgia Railroad et al.

or rendered in this case, is reviewable by this court. It is an order, and a final order, disposing of the case forever in the superior court, and therefore reviewable here. 59 Ga., 17; 60 Id., 423; 68 Id., 394.

2. To divest the courts of this state of jurisdiction, a petition must be filed, which, taken in connection with the record, makes a case for removal. 100 U. S. R., 457. Upon this petition and record, the state court must pass. 59 Ga., 17; 3 Woods, 128.

3. The record shows that the East Tennessee, Virginia and Georgia Railroad Company, under the charter powers of the Cincinnati and Georgia Railroad Company, purchased from it "its rights, titles, properties, franchises, powers and privileges of every description," and "assumed all of its debts, obligations and burdens of every sort," and that these companies "became merged and consolidated under the name of the East Tennessee, Virginia and Georgia Railroad Company, under its Tennessee charter and under the charter granted by the state of Georgia to the Cincinnati and Georgia Railroad Company."

The charter of the last named company granted the widest powers to it. Acts of 1880-1, p. 250.

By the second section of that act of incorporation, on page 251, it is enacted that "said corporation shall also have the right and power to purchase from or sell to any other corporation, person or company, whether within or without this state, * * * any railroad, including its charter, franchises, rights and privileges, or any of its or their branches or extensions, upon such terms as may be agreed upon by the board of directors of the corporations, respectively, and the owner of said railroad charter, franchises, rights or privileges, which in each case is also hereby authorized to sell and convey, or lease the same or any part thereof. * **" Where asterisks are used, provisos, not affecting the grant of power in its application to this case, are omitted in the above extract from the act.

By the twelfth section, it is enacted that "the principal