concurring:
The first question for us to decide is, has Holland any interest in the subject-matter of this suit? He alleges in his answer that he purchased the franchise of the' Jacksonville, Pensacola & Mobile Railroad Company, or, at least, the equity 6f redemption. To this allegation there is a demurrer, which was sustained in the court below, and upon which this appeal is prosecuted. The demurrer then admits the facts and raises the issue of law, which it is our duty to decide. That a franchise cannot be sold under a fi. fa. has been determined so often, at least in this country, that there cannot be any better settled principle of law found. It is true that there is not any decision in our State, but the Supreme Court of the United States has decided this question; and Judge Taney, in delivering the opinion in the case of Robert Cue vs. Tide Water Canal Company, 24 Howard, 257, says: “ A corporate franchise to take tolls on a canal cannot be seized and sold under a fieri facias, unless authorized by a statute of the State which granted the act of incorporation.” And it will be seen that there is no such ■statute in this State.
Again he says: “ Neither can the lands or works essential to the enjoyment of the franchise be separated from it and sold under a fi. fa., so as to destroy or impair the value of the franchise.” Ib.
In a North Carolina ease the court holds: “ We agree that the franchise itself cannot be sold.” (5 Dev., 306, State vs. Reives.) The court in this case decided that the land upon which the road is built could be sold under a fi. fa., for the reason that the Legislature had made so other povision by which debts could be collected, and say: “ We *542regret sincerely that it has hitherto escaped the attention of these companies and of the Legislature that some act was necessary in order that such sales, when unavoidable, might be made with the léast loss to the debtors and the greatest advantage to the creditors and purchasers, by providing for keeping the franchise with the estate. Or, if it so please the Legislature, ah act might provide for putting the road .into the hands of a receiver, and subjecting the income to the creditors, instead of the estate in the land stripped of the franchise. But nothing of this kind has been done.” State vs. Reives, 5 Dev. 307. . •
But it will be seen that the Legislature of Florida had made such provisions, and pointed out the manner in which a judgment creditor could collect his debt after he had obtained a judgment. (Acts of 1870, sec. 374, amended in 1871, pamphlet, p. 13, 1832.) And it is a well settled principle that, when a statute prescribes the manner in which a debt should be collected from a corporation, the statute must be strictly pursued. It will be seen that the decision in North Carolina was made in 1844, long before the decision in 24 Howard, 257, and has long since been overruled in the North Carolina court and the ruling in 24 Howard sustained, and that it is now settled that even a worn-out rail and timber necessary for the repairs of -the road are exempt from levy and sale. (2 Redfield on Railways, 543,. note, and authorities referred to there.) Thus it clearly appears that the franchise, or anything which is necessary to the enjoyment of all the rights pertaining thereto, cannot be sold under an execution.
But the defendant, Holland, says he purchased the equity of redemption. If it could be possible that the equity of redemption could be sold under an execution, when the thing itself could not, before making the mortgage or deed of trust, it must be by statute, and we have no statute in this State authorizing the sale of the franchise or the eqrdty of redemption in a franchise. It will be seen that we have a statute *543authorizing the sale of the equity of redemption in property -already subject to sale, but surely that cannot be construed to authorize the sale of the equity of redemption in property not subject to levy and sale. (Thomp. Dig. 355-6.) This statute is in derogation of' the common law, and must be strictly pursued. The demurrer raises this question, and it was as much the duty of Holland to show that the statute had been complied with as it was to show that he had an execution. It will be seen that Holland does not allege in his answer that the statute has been complied with. Mr. Red-field, in his valuable work, “ The Law of Railways,” published in 1867, could only find one'case where a sale of the equity of redemption in a railroad corporation had been sustained ; but he does not tell us whether that was by virtue of a statute authorizing the sale of the equity of redemption in a railroad corporation, and I have not been able to get the report of the case. (Wood vs. Goodwin, 49 Maine R. 260; 2 Redfield on the Law of Railways, 546.) Then, as the statute authorizing the sale of the equity of redemption does not authorize the sale of the equity of redemption in a. railroad corporation, and the requirements of the stafute have not been complied with, it certainly cannot be maintained that Holland acquired any title under his sale and purchase, and, for that reason, the demurrer must be sustained, and the judgment of the court below affirmed. *
The only other question which. I desire to express an opinion upon, is, the constitutionality of the bonds issued and delivered by the State to the Jacksonville, Pensacola & Mobile Railroad Company. I have reached the same conclusion as Justice Westcott, but desire to give my own reasons. The Supreme Court of the tTnited States very properly remark, “this is a delicate question,” and all the circumstances surrounding and connected with this case render it a complicated and very delicate question. As that court remark, the judges of this court gave an official opinion, which was generally considered favorable to the constitutionality of these *544bonds, and two of those judges are not here to speak for themselves ; one of them has passed away, and the other is disqualified to sit in this cause, and there is the further difficulty, to my mind, that none of the holders of these bonds are before the court, though the State — the trustee — which has the mortgage or first lien upon the road to enable it to finally pay the bonds, is before the court. If the bonds are invalid, they might have come into this court, or the court below, and asked to be subrogated in place and stead of the State, but they have not done so, and they have a right not to do so. There is one aspect of the case which makes it very much the duty of this court to pass, now, upon the validity of these bonds. If the holders were misled by the official opinion given by the justices of this court, they should know it at once, and take hold of whatever security may be in their power, and more especially so in this case, as the railroad, if they should see proper to resort, to that, is deteriorating in value every day.
The question to be'decided, then, is, is the act of the Legislature authorizing the Governor of the State to issue and deliver fo the Jacksonville, Pensacola & Mobile Nailroad Cpmpany the bonds of the State constitutional, and that must be done by reference to the statute and Constitution of 1868.
The*Constitution of 1868, Section I, Article XII., authorized the Legislature to provide for issuing bonds of the State, bearing interest, for securing the debt of the State, and. for the erection of State buildings, support of State institutions, and ferfecbmg the public works.
I think it may be conceded that perfecting the public works means, and was intended to mean, the uncompleted railroads and canal, designated as such by the internal improvement act of January, 1855.
The whole course of legislation then, and since that time, has so treated that system, and these roads as the public works of the State, because they were aided by the State. *545Then the sole question here is, is the Jacksonville, Pensacola and Mobile Eailroad one of these public works, designated by that act — I mean the act of the 6th of January, 1855? Two corporations accepted the provisions of that act, which were authorized to construct-a road from the Apalachicola river west. The Pensacola and Georgia Eailroad Company was to commence at the city of Pensacola, or some point on the Pensacola bay, running eastwardly to some point on the Georgia line. • The other, the Florida, Atlantic and G#lf Central Eailroad, to commence in East Florida, upon some tributary of the Atlantic ocean, within the limits of the State of Florida, and run through the State to some point, bay, arm, or tributary of the Gulf of Mexico, west of the Apalachicola' river, in West Florida.
The internal improvement act provided that a railroad be built from the St. Johns river, at Jacksonville, to the waters of Pensacola bay, with an extension, at suitable points on said line, to St. Marks, or Crooked river at White Bluff, and Apalachicola bay in Middle Florida, and the waters of St. Andrew’s bay in West Florida, &c. (Act of 1855, page 11, pamphlet.) The charter of the Jacksonville, Pensacola and Mobile Eailroad, as amended, is “to build a road from the terminus of the late Pensacola and Georgia Eailroad, now the Tallahassee Eailroad, at Quiney, to the boundary line between the States of Florida and Alabama,” &c. (Amended act of 1870.) It cannot be pretended that this is the terminus or starting point of either line of railroad which did accept the provisions of the internal improvement act.
The Jacksonville, Pensacola and Mobile Eailroad does not mention the city of Pensacola or Pensacola bay, which are cardinal points in the Pensacola and Georgia charter, neither does it touch the Gulf of Mexico west of the Apalachicola river in West Florida, neither does it touch the cardinal point'mentioned in the internal improvement act, the waters of the Pensacola bay, but runs north of that city *546and bay, and extending to the Alabama line. It is very clear that part of this line and terminus is not named in the internal improvement act,, or in the charter of either of the roads which had accepted the provisions of that act. Now it is very well remembered by some of us what induced the Legislature to make the City of Pensacola, or Pensacola bay, or the Gulf of Mexico, west of Apalachicola river, in the State of Florida, cardinal points in their charters, and in the internal improvement act.
It was contended then, whether it appears or'not, I cannot tell, in the proceedings of the Legislature, that the State of Florida had natural advantages which she did not intend that others should enjoy, at least until her system, as inaugurated, was permanently established.
These are reasons that did or might have actuated the Legislature in establishing these particular cardinal points, and if it had not been done, might have defeated the whole system. But is this a sufficient deviation from the original system to put it beyond the power of the Legislature to extend-the aid to the Jacksonville, Pensacola and Mobile Railroad Company ? I think, , under the reasons and holding of the courts in analogous cases, it is; for there is nothing like the -present case to be found in the books, though the courts have time and again decided what variation from the original route or terminus would exonerate a previous subscriber from the payment for his stock.
The Supreme Court of the United States, in the case of Marsh vs. Fulton county, 10 Wall. 676, held that a subscriber to stock and issues of county bonds, authorized upon the vote of the people of the county, to the organized corporation, could not be legally made to pay their subscription to one of three roads made out of the one. Mr. Red- . field uses this language in his work on the law of, railways : There can be no doubt that the subscribers to the stock of a railway company are released from their obligation to pay calls by the -fundamental alteration of the charter. - (1 Red-*547field on the Law of Railways, page 193, and cases referred to there; 11 Ga. 138 ; 5 Hill, 383.)
“ If a person subscribes for the purpose of building a railroad between two given points, and this project is abandoned, the person is not liable to another company, who are authorized by an act of the'Legislature to impose such subscription for another purpose, such act not being in the power of the Legislature to grant.” (Angel and Ames on Corporations, Sec. 512; Pittsburgh & C. R. R. Co. vs. Gazzan, 32 Penn. State, 310.) The authorities of this kind might be multiplied to almost ah indefinite number, but it is deemed unnecessary.
Por the reason that this is a deviation from the system of internal improvement inaugurated by the internal improvement act, it clearly appearing that the charter to the Jacksonville, Pensacola and Mobile Railroad Company is for a different terminus, and part of the line entirely a different road from what was organized as the system of internal improvement in this State, and therefore cannot be considered as a part of that system.
In addition to Ml this, is there one word in the State Constitution, or in the advisory opinions of the Judges, which can be construed or tortured into the construction*that the Legislature had power to authorize the exehcmge of .the State bonds on a completed railroad ? *
“ Section 7. The Legislature shall háve power to provide for issuing State bonds, bearing interest, for securing the debt of the State, or for the erection of State buildings, support of State institutions, and perfecting public works.”
There is not one word in the Constitution which can be twisted into a construction that the Legislature might provide for issuing the bonds of the State in exchange for the bonds of the railroad company, to aid it to maintain its road, or for any other purpose than the completion of the system inaugurated by the internal improvement act.
The act under which these State bonds were issued pro*548vided merely for an exchange or barter for the bonds of the railroad company, and no where contains any provision for the application of the State bonds, or their proceeds, to the purpose of perfecting any railroad or other public work. It is in substance and effect an attempt to endorse the bonds of a road alre%dy built — a thing not contemplated by the Constitution in any aspect. . Then is the official opinion of the Judges calculated to mislead any one, or authorize the construction that they were in favor of the validity or constitutionality of these bonds ? ^
As this will be better understood I may be pardoned for copying the inquiry of the Governor and the opinion in full of the Chief Justice.
[The Judge here read the advisory opinion of Chief Justice Randall in 13 Fla. 719.]
The question of the validity of these bonds was not before the Justices' at the time they gave their advisory opinion. Now can there be found anything in this opinion which might lead to the conclusion that the bonds in question could be authorized to be issued by the legislature ? To my mind it is clear it is not.
I have copied and used the opinion of Judge Randall because Jqdge Weseott is here and fully able to speak for himself, and has done so. I do not copy the opinion of Judge Hart, because he has passed away, and his opinion is very short, and fully agrees with the gist of the other opinions.
Eor these reasons, and those of Judge Westcott’s so logically and properly given, and with which I fully agree, I am compelled to come to the conclusion that these bonds are invalid, and were issued, in violation of the Constitution, and that- they are entirely null and void, and that the State is not bound to pay them, and that the State holds the lien upon the road as trustee for those bondholders.
I agree with Mr. Justice Westcott as to the equities and status of the State. ..