The appeal in this case having-been taken from the order granting the application for condemnation made under section 1717 of the Code, within thirty days thereafter and before the final order of condemnation on the report of the commissioners provided for by section 1720 of the Code, brings such preliminary order properly into and before this court, and the motion to dismiss it must be denied. — Birmingham Railway & Electric Co. v. Birmingham Traction Co. ante. p. 110; Southern Railway Co. v. Birmingham, Selma & New Orleans Railway Co., (Ms.)
The genesis of section 1172 of the Code of 1896 is this: On March 8, 1876, an act “To authorize the incorpora*532tdon of railroad companies in this State”- was enacted. It provided for filing declaration of incorporation in the office of secretary of state and all necessary proceedings thereunder to the issuance of a certificate of incorporation by the secretary of state, and was'and,' with amendments, continues ito this day to be what is known as the “general law for the incorporation of railroad companies.” Section 16 of that act is as follows : “That every railroad company incorporated under the provisions of tb.is act shall have its domicile or principal place of business in this State, but any railroad incorporated and domiciled as above, may own and operate a railroad connecting with their [its] own outside of this State; and all meetings of directors and of stockholders of companies, organized under this act, shall be held in this State at the place where its principal office may be established. Mortgagees or others who may be or become purchasers of any railroad 'in this State under any judicial or other sale, may reorganize the property so purchased in the manner provided in this act for the incorporation of railroad companies.” This whole statute was carried into the Code of 1876; and section 16, except its last sentence was embodied in section 1843 of that Code, that section being a copy of section 16 of the net down to the words, “mortgagees ‘or others,” etc. This clause of section 16 is embodied in section 1.844 of the Code of 1876 in the words of the act, along with a provision taken from the act of March 20, 1875, to the effect that within sixty days after incorporation by such purchasers such corporation should file a certificate thereof in the office of the secretary of state, and defining the word purchasers. On December 12, 1882, an independent act was passed “To authorize railroad companies organized under the general incorporation laws of this State to extend their lines and build branch roads.” The first section of this act provides: “That any railroad company which lias been heretofore, and may he hereafter, incorporated and organized under the general incorporation laws of this State, may extend its railroad from any point named in its charter, and may build branch roads from *533any point or points on its line. Before making such ■extension, or building any such branch road, such railroad company shall, by a resolution of a majority of its board of directors, to be entered on the records of its 'proceedings, designate the point from which and to which such extension is to be made or such branch road is to be built.” Section 2 of the act requires the certification of a copy of said resolution to the secretary of state and its filing and recordation in his office, and provides that “thereafter such company shall have the same right and power, to make such extension and build siicli branch road as if it had been authorized in its original charter,” etc., etc. Section 3 confers upon such companies “for the purpose of making such, extension and building such branch road,” all the rights, powers, etc. “which are now or may hereafter, by the laws of this State, be granted to, and vested in, railroad companies incorporated under the general incorporation laws of the State.”' Acts, 1882-83, p. 21. The provisions of this act are combined with the provisions of sections 1843, 1844 and 1845 of ,tlie. Code of 1876, in the codification of 1886, .and all are embodied in sections 1587 and 1588 of the Code of the latter year; but by the terms of said last named codification the operation of the provision as to the extensions of line, and building branch -roads is not expressly confined, as in the Code of 1876 and the act ■ of 1882, to corporations organized under the general incorporation laws of the State, but, unless limited by the connection in which these sections are placed in the Code of 1886, they there deal with any “corporation, now existing or which may hereafter be organized for the building, constructing and operating a -railroad.” Section 1588 of the Code of 1886 was, however, amended by the act of February 28, 1889, which act reiterates the provision of the act of 1882 that after the adoption and filing and recordation in the office of the secretary of •state of the resolution of the directors for an extension of line or the building of a branch road, the corporation for that purpose “shall have all the'rights, powers and immunities which are now, or may hereafter by the laws • of this State, be granted to and invested in railroad *534corporations under and by virtue of the general incorporation laws of tlie State.” — Acts, 1888-89, pp. 75-6. And this provision in the words quoted is now embodied in -section 1173 of the present Co-de; but section 1172 of' the Code of 1896 granting power -and authority to extend lines and to build branch roads, like its progenitor, section 1587 of the Code of 1886, is broad enough in its terms to cover corporations organized under special acts as well as those organized under the general incorporation laws. Its language is: “Any corporation now existing, or which may be hereafter organized for the-building, constructing and operating a railroad, liasauthority, for the purpose of extending its line, or forming a connection, to acquire, hold and operate a railroad without this State; or within the State may extend its-road, or may build, construct and operate branch roads, from any point or points on its line.” And w-e see no reason for not giving full operation to this section and to section 1173 according to their own expressed terms except in eases where their provisions are controlled or their operation is excluded by special enactments. It is true that these sections are embodied in a chapter of' the Code which con-tains the general law for the incorporation of railroad companies, that this chapter in the main is drawn from -and intended to be a codification of' the act of 1876 which dealt only with corporatons organized under it in the office of the secretary of state;but this chapter now contains many provisions that have no reference to corporations organized under that general law, and others' which obviously and necessarily apply to both classes of corporations, those organized under the general law and those. chartered by special act. It is also true that the provisions of sections 1172 and 1173 as to the granting of power to build" branch roads are taken from the act of 1882 through intervening codifications, and that by the express terms-of that original act a-s also by its term-s as first codified, its operation was expressly limited to corporations organized under' the general incorporation laws of the-State; but it was, of -course, competent for the legislature in the framing and adoption of a new Code to eli*535minarte that limitation. And that it is entirely omitted from the last codification implies, of course, a legislative purpose that there should be the change in the Iuav which the omission imported. And there is as much reason for giving all the. terms of both sections operation in respect of a railroad 'Corporation chartered by special act «thick docs not confer potter to extend the main line or to build branch roads as to accord it effect as to a corporation organized under the general incorporation Mats of the State. EAren the last clause of section 1173 may Avell have a field of operation in respect of a specially chartered corporation not having poAver to build extensions or branch roads, 'Since- the rights, powers and immunities necessary to extending the line or to building branch roads could not be derived from the special act AA-hich conferred no poAver to extend the line or to build branch roads, and hence could not be looked to for such' powers, rights and immunities AArhen the specially chartered company had acquired under this statute the naked right to extend its line or to build a branch road. At least it may be said that there is the same necessity for the operation of the last clause of said section in respect of a corporation whose special charter did not confer the power of extension, and which had acquired that poAver under these sections, as in respect of a corporation organized under the general Iuav aaIiícI» had acquired authority to build extensions and branch roads under said sections. So that our opinion is that where a railroad company has been chartered by a special act of the legislature, and that act does not confer power ¡to extend its lines beyond termini named in it, or to build branch roads, it may acquire such poAver under and in accordance with the provisions of said sections 1172 and 1173 of the Code, and must acquire it in that way or by legislative amendation of its original charter.
But iit seems entirely clear to us that as the general assembly may by special act charter a railroad corporation and confer upon it in express terms every power, right and immunity that such corporation may have, hold or enjoy under the constitution, it of course may *536authorize, such corporation to build branch roads and confer upon it every power and right incident and necessary ito the exercise of the authority to build such roads, and this it may do directly, absolutely and unconditionally, leaving no necessity, occasion or room for invoking the provisions of section 1173 to that end, or for complying in any way with those provisions to accomplish it. And that is precisely what the legislature has done in respect of the Birmingham Southern Railroad Company, the applicant for condemnation below and appellee here, by the special act of February 17, 1899, introduced in evidence on the trial below. That act authorizes the corporation to build the branch road the right of way for which over respondent’s lands is sought to be condemned in this proceeding, and it confers all the incidental rights, powers and immunities necessary to the exercise of the power to build said road; and it thereby takes the case wholly out. of the operation of sections 1172 and 1173 of the 'Code. This interpretation is strengthened by the terms of the act of December 12, 1882, which, as Ave have seen, is the original source of the sections of the present Code bearing on this matter. It is there provided that after the provisions of the act have have.been compPed-with the “company shall have the same right and poAver riso make such extension and build such branch road as if it had been authorised in its original charter(the italics are ours) thus demonstrating that the statute. was only intended to supply power where there Asms an absence of it in the original (•'¡'■aider, and that the power intended to be supplied by the statute Avas only the same as a company with such authorization in its charter would have without-a resort to the statute. Acts 1882-83, pp. 21-2. The case of Arrington v. Savannah & Western Railroad Co., 95 Ala. 431, had to do Avith the right of a corporation organized under the general law to build a branch or spur track. The general 1&av did not authorize the building of such track. The corporation had no special statutory power. Of course it could acquire this power only under and in comnliance with sections 1172. and 1173 of the Code. And that was all that was held in that *537case.. It was not there held or intimated nor intended to be that a corporation having special statutory power to- do this thing yet could not do it until it acquired the same power in the manner pointed out in the Code. The case is not authority here. It arose under the Code; this one does not.
The further position taken for appellant that leaving the statute out of view, the respondent had the right to show on the trial below that the directors of the Birmingham Southern Railroad Company had not resolved to build this branch road, and that of consequence the company ivas without authority to build it and without right to condemn a right of way over respondent’s land, is untenable. That is a matter of importance to the members' — stockholders—of the corporation, but of no legitimate concern to strangers.
The. rulings of the probate court were in accordance with the foregoing views of the law, and its judgment must be
Affirmed.