Page:Railway Company v. B'Shears 01.pdf/6

242 the company sufficient means to defray the reasonable expense of grading a switch or side track at said town, as required by section 5501, before the plaintiff would be entitled to insist upon the stopping of the trains prayed for."

The issues upon the demurrer and upon the finding of facts by the court are the same, and may be considered together.

Argument for appellant
Dodge & Johnson for appellant.

The statute is plain and unambiguous. The plaintiff having failed to pay or tender the consideration required by the act, the failure is fatal. No exception is made in the statute, and the courts can make none. 1 H. L. App. Cases, 611, 620; Mansf. Dig. sec. 5501, etc.; Sutherland, Stat. Const. secs. 454, 458-9, 390, 399, 325-6, 427; 28 Ark. 360; 48 id. 155; Sedg. St. Const. sec. 343; 55 Ala. 408; 3 N. Y. 9; 73 Ala. 390; 67 Barb. 350; Endlich, Int. Stat. secs. 433-4, 17; 13 Ark. 292; 16 id. 694; 20 id. 18; 24 id. 494; 39 id. 247; 42 id. 122; 46 id. 37; 53 id. 481 ; 30 A. & E. R. Cas. 511; 43 id. 260; 142 U. S. 508; 136 U. S. 393; 110 id. 667-81-2.

Argument for appellee
Scott & Jones for appellee.

The law never requires a useless or vain thing. Having already all the tracks necessary, no tender was necessary. The reason has failed. Endlich, Int. St. sec. 295, p. 399. The intent and spirit of the act should govern; and not the literal meaning, when absurd consequences would otherwise follow. Sedg. Const. & St. Law, p. 255, note a (2d ed.); 35 Ark. 61; 37 id. 491; 48 Ark. 305.

H, J., (after stating the facts). The only question we have considered and determined in this case is, whether this suit can be maintained, the citizens of Fulton having failed to provide and tender to the railway company means sufficient to defray the reasonable expenses of grading a switch or side track at said town