BATTLE, J., dissenting. I do not concur with the court in the interpretation of the statute in question. It requires railroad companies, on the application of fifty citizens of any incorporated town to the proper officer, "to stop all trains—freight or passenger—at some point within the corporate limits of such town most convenient for the reception and handling and discharge of freight, and the reception and discharge of passengers, and the reception and delivery of the mails, and most convenient to accommodate the business of such town;" and then adds: "Provided, That before any town may or can insist upon and compel the stoppage of trains, as in this act provided, the corporate authorities of such town shall provide and make tender to such railroad companies sufficient means to defray the reasonable expenses of grading a switch or side track at such place of stopping for the use of such railroad company." Acts of 1873, pp. 169, 170. The object of this proviso was, I think, to relieve the railroad companies of any additional expense of grading a switch or side track to the convenient place in the town where they are required to stop their trains. Before a town can compel the stoppage of trains it must tender sufficient means to defray the reasonable expenses of grading, not laying, a switch or side track. If there is no grading to be done, no expense on that account can be incurred, and none, certainly, can be tendered or is required. The expense of laying or making the track which constitutes the switch, except grading, is imposed on the railroad companies.
In this case it is alleged, and not denied, that the railroad company has already constructed and in operation all the switches and side tracks necessary for the stopping of trains. No grading is necessary for that purpose. It would be folly to require a tender of means to defray an expense which does not and will not exist, in the event the petition of appellee be granted.
Wood, J., concurs with me.