ing railroad companies under Rev. Stats. 3381, which fails to show any place of residence of the directors of the new company, is fatally defective.

George K. Nash, Attorney General, B. H. Bristow, A. F. Perry, E. A. Ferguson, Converse, Booth & Keating, and R. C. Parsons for the State.

R. P. Ranney, Harrison, Olds & Marsh, S. Burke, W. B. Sanders and O'Conner, Glidden & Burgoyne, for the defendants.

OKEY, C. J.

George K. Nash, Attorney General, on October 25, 1881, filed in this court a petition in quo warranto. The action is against William H. Vanderbilt and other persons named, and it is alleged in the petition that those persons, with others too numerous to be brought before the court, have usurped the franchise to be a body corporate, under the name of the Ohio Railway Company, and that they wrongfully claim to possess certain corporate franchises, powers and privileges. The prayer is for judgment ousting the defendants from exercising such franchises, powers and privileges. The record consists of the petition, answer, reply, and an agreed statements of facts.

The burden is on the defendants to show by what authority they claim to exercise such powers, and the order of trial is the same as if the cause was for hearing on testimony. Consequently, wehave held that under the statute (Rev. Stats. $$ 5190, (6760, 6772), the defendants were entitled to open and close in the argument.

The defendants claim to be such corporation, clothed with such powers and privileges, under authority of certain proceedings had in the months of July and September, 1881, whereby the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and the Cincinnati, Hamilton and Dayton Railroad Company, Ohio corporations, were consolidated into one corporation, under the corporate name of the Ohio Railway Company.

The Cleveland, Columbus, Cincinnati and Indianapolis Railway Company is a corporation, with a line of railroad extending in a north-west direction from Cleveland, in Cuyahoga County, to Springfield, in Clark county, a distance of one hundred and sixty-three miles; and the Cincinnati, Hamilton and Dayton Railroad Company is a corporation, with a line of railroad extending from Cincinnati, in Hamilton county, via Hamilton, in Butler county, to Dayton, in Montgomery county, Dayton being in a direction east of north from Cincinnati, and distant therefrom sixty miles. The authority to make the alleged consolidation is based by the defendants on section 3379 of the Revised Statutes, which is as follows: "When the lines of road of any railroad companies in this State, or any portion of such lines, have been or are being so constructed as to admit the passage of burthen or passenger cars over any two or more of such roads continuously, without break or interruption, such companies may consolidate themselves into a single company."

As the southern terminus of the first named road is twenty-four miles from the northern terminus of the latter road, being the distance between Springfield and Dayton, it is not claimed by the defendants that the consolidation could be effected under authority of that section, if the power to consolidate can only be exercised where burden and passenger cars can pass from the road of one company to the road of the other, "continuously, without break or interruption." It is said, however, that it is not essential to a valid consolidation that such companies' own lines should be thus connected, but that where the consolidating companies, or either of them, holds from another railroad company a perpetual lease of its road, and such leased line is so constructed that cars may thus pass from the line of the lessee to the leased line, and from the latter line to the line of the other consolidating company, the latter company and such lessee may consolidate; in other words, that such leased line is embraced by the words of the section, "lines of road" of the consolidating companies.

As each of the consolidating companies is possessed of such leased lines, by means of which it is said such connection is made, the

importance of this contention of the defendants is manifest, and hence it is proper to state more definitely the condition and situation of the several roads affected by this controversy.

The line of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, as already stated, extends from Cleveland to Springfield. This is by way of Galion, in county. It also extends from the latter place Crawford county, and Delaware, in Delaware to Columbus, in Franklin county; and another part of its line, extending from Galion to Indianapolis, Indiana, crosses the track of the Dayton and Michigan Railroad Company at Sidney, in Shelby county. This constitutes the line of road which it owns.

The Cincinnati and Springfield Railway Company is a corporation with a line of railroad extending from a point near Cincinnati to Dayton It also has by lease from the Cincinnati, Sandusky and Cleveland Railroad Company, a line of railroad extending from Springfield to Dayton. These two lines do not directly connect at Dayton, but by arrangement between the Cincinnati and Springfield Railway and other railroad companies, a connection is made between the two roads, by means of a road used in common by several railroad companies. In 1871, the Cincinnati the first part), the Cleveland, Columbus, Cinand Springfield Railroad Company (party of cinnati and Indianapolis Railway Company (party of the second part), and the Lake Shore and Michigan Southern Railway Company (party of the third part), executed an instrument in writing, called by the defendants a

conveyance of the fee, or at least a perpetual lease, to the party of the second part, and by the relator called a running arrangement between the parties, which instrument contains numerous stipulations with reference to the construction of the line between Cincinnati and Dayton, the division of the earnings, and other matters, and by force of which agreement the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company acquired the right to run its cars from the terminus of its road in Springfield to Cincinnati, via Dayton, and cars of that company pass regularly over the roads stated, without break or interruption, from Cleveland to Cincinnati, a distance of two hundred and forty-three mlles.

Among the stipulations in that instrument it is proper to mention the following:

"Nothing herein contained shall operate to grant and demise, or be construed to include the franchises to be a corporation granted to the party of the first part by the State of Ohio, or any other right, privilege or franchise which is, or may be, necessary to preserve the corporate existence or organization of the party of the first part, and all the said franchises to be a corporation, and all the rights, privileges and franchises last aforesaid are reserved and excepted from these presents. And said party of the first part further cove. nants and agrees, that .upon the written request of said second party, its successors or assigns, it will appropriate, under the laws of the State of Ohio, such real estate, rights and interests as shall be required for the maintenance and operating of said railway; and the costs and damages thereof shall be paid by the party of the first part."

"At the end of ten years from the delivery of possession of said Cincinnati and Springfield Railway Company's railway to the said party of the second part, the railway and appurtenances of the said party of the second part shall be consolidated with the railway and appurtenances of the said party of the first part, in case the laws of Ohio shall then permit and authorize such consolidation to be made, and said consolidation shall be made. upon the basis of the proportionate values of the respective railways and appurtenances of said first and second parties, as the same shall appear by the net earnings of each for the three years next preceding the time of such consolidation."

"The intent and purpose of this indenture is to form and construct a shorter and continuous railway between Buffalo, N. Y., and Cincinnati, Ohio, of uniform gauge, for the transportation of persons and property between the last named cities and places beyond

each, and to promote the interests of the public and the parties hereto."

The lessor companies have at all times maintained their organizations.

In 1863, the Dayton and Michigan Railroad Company (party of the first part), owning a line of railroad from Dayton to Toledo, in Lucas county, via Sidney, a distance of one hundred and forty miles, executed to the Cincinnati, Hamilton and Dayton Railroad Company (party of the second part), a perpetual lease of its road, which lease was modified by agreement, under the seals of the parties, in 1870. This instrument, so modified, contained numerous covenants, among others an agreement by the party of the second part to pay to the stockholders of the party of the first part certain dividends, and by the instrument the continued existence and organization of the Dayton and Michigan Railroad Company is contemplated. The lease contains this clause:

"In case said party of the second part, its successors or assigns, shall at any time hereafter, fail to pay said dividends to the stockholders of said party of the first part, as herein before provided for, or shall fail to keep and perform any of the other covenants and agreements in said lease (as hereby modified) contained, on its part to be kept and performed, and shall continue in such default for the period of ninety days, then, and in every such case, it shall be lawful for the party of the first part, its successors and assigns, at its or their option, without demand, to enter into and upon said demised premises and remove all persons therefrom; and from thenceforth the said demised premises and all additions and improvements which shall or may have been made to the saine, shall be held by the party of the first part, as of its first and former estate; and upon such entry for nonpayment of rent, or breach, or non-performance of any agreement or covenant, all estate of said party of the second part in said demised premises, and the additions thereto, shall cease and determine, and the party of the second part hereby covenants and agrees upon the determination of said lease for the causes aforesaid, to sur-render and deliver up to the party of the first part, its successors or assigns, the said demised premises, including rolling stock, equipment, machinery and tools, equal to that now on said premises, in as good order and condition, as the same may be at this time in, together with all additions and improvements that may be made thereto."

The agreed statement of facts contains the following: "Said Dayton and Michigan Railroad Company has, ever since said indenture as before it, maintained and kept up its organization as a corporate body by regular elections of directors and officers, keeping a business office, and in all things conforming to the provisions of its charter and the laws of the State as a railroad company."

Burden and passenger trains pass regularly over these roads (the Cincinnati, Hamilton and Dayton Railroad and the Dayton and Michigan Railroad), without break or interruption,. from Cincinnati to Toledo, a distance of two hundred miles.

The Cincinnati, Hamilton and Dayton Railroad Company also controls and operates the following lines of railroad under leases, that is, the Cincinnati, Richmond and Chicago

Railway, extending from Hamilton to Richmond, Indiana, and the Cincinnati, Hamilton and Indianapolis Railway, extending from Hamilton to Indianapolis.

At Dayton cars may pass from the lines so under the control and management of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company to the lines so under the control and management of the Cincinnati, Hamilton and Dayton Railroad Company, and vice versa. The hiatus at that place between the northern terminus of the Cincinnati and Springfield Railway and the southern terminus of the Cincinnati, Sandusky and Cleveland Railroad, supplied by arrangement with and used in common by all the railroads at that place, as already stated, consists of two tracks, and all cars going in one direction pass over one of the tracks, and all cars going in the other direction pass over the other track.

At Sidney the track of the Dayton and Michigan Railroad, so operated by the Cincinnati, Hamilton and Dayton Railroad Company, crosses the line of the Cleveland, Columbus and Indianapolis Railway, leading from Galion to Indianapolis, eighteen feet above the track of the latter road, and the two roads are connected at that place by a side track six hundred feet in length, by using which cars may pass from one road to the other.

If we regard the instrument by which the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company acquired the right to operate and control the Cincinnati, Sandusky and Springfield Railroad between Springfield and Dayton, and the Cincinnati and Springfield Railroad between Cincinnati and Dayton, as a permanent lease, we state the case as favorably for the defendants as the law and the fact will warrant; and the same thing is true with respect to the instrument under which the Cincinnati, Hamilton and Dayton Railroad Company operates and controls the Dayton and Michigan Railroad. We recur then to the question whether lines held by leases are within the terms of section 3379. In order to determine that question, it is proper to consider all the legislation upon the subject.

The Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and the Cincinnati, Hamilton and Dayton Railroad Company, were each subject to all the restrictions and conditions prescribed in the act of 1848, "regulating railroad companies", (2 Curwen, 1394), and the amendments thereto, and are subject to the restrictions and conditions of all general laws of the State relating to railroads and railroad companies. The act of 1848, provided by section two as follows: "Said cor

poration shall be authorized to construct and maintain a railroad, with a single or double track, with such side tracks, turn-outs, offices and depots, as they may deem necessary, between the points named in the special act incorporating the same, commencing at or within, and extending to or into any town, city or village named as the place of beginning or terminus of such road, and construct branches from the main line to other towns or places within the limits of any county through which said road may pass."

Previous to 1851, special provision was made in the charters of certain railroad companies for consolidation with other specified companies, but there was no general law upon the subject. The act of 1851, "relating to railroad companies" (2 Curwen, 1056), provided as follows: "Whenever the lines of railroad of any railroad companies in this State, or any portion of such lines, have been or may be constructed so as to admit the passage of burden or passenger cars over any two or more of such roads continuously, without break or interruption, such companies are hereby authorized to consolidate themselves into a single corporation." This evidently is to be understood as referring to the line of each road, but the word is made plural in form for the reason. that the two companies are referred to in the same form. And it was required, furthermore, by that act, that the agreement between the directors of the consolidating companies should specify, among other things, "the manner of converting the shares of capital stock, in each of said two or more corporations, into shares in such new corporation, (and) and the manner of, compensating stock-holders, in each of said two or more corporations, who refuse to convert their stock into the stock of such new corporation. either of such corporations, who shall refuse to **Provided, that all stock-holders, in

*

convert their stock into the stock of such new corporation, shall be paid at least par value for each of the shares so held by them, if they shall so require, previous to the consolidation being consummated." And it was further provided, in effect, that when such consolidation was effected, the consolidating companies should cease to exist, and "all and singular their rights and interests, in and to every species of property, real, personal and mixed, and things in action, shall be deemed to be transferred to and vested in such new corporation, without any other deed or transfer."

Apart from the provision relating to consolidation, and wholly independent of it, the same ized in pursuance of law might lease any part act provided that any railroad company organor all of any railroad constructed by any other company, if the lines of such lessor and lessee were continuous or connected, "upon such terms as may be agreed on between said companies. respectively." This was the first general provision on the subject.

By force of such lease the right to the use of the road passed from the lessor to the lessee, according to such terms and conditions with respect to the use as are proper in a lease, but it seems clear that nothing else passed. In Pennsylvania it is said, "that the lessee is the assignee for a term or period of the lessor -his bailiff to hold possession for him." Penn. R. Co v. Sly, 65 Pa. St. 205. In case of consolidation by the lessee with ano therrailroad company, the rights of the lessee under that lease, passed to the new company; but the corporation thus leasing its road retained unimpaired its corporate existence, powers and privileges, except as affected by the agreement for such use, and among the powers so retained 'by the lessor was that of consolidation. In other words, the power to take a lease does not imply a power to consolidate, nor does the power to consolidate imply a power to lease, but the powers are distinct and independent. Evidently that was the view taken by the parties when the lease to the Cleveland, Columbus, Cincinnati and Indianapolis Railway was executed, as will appear from the extracts from that instrument quoted in this opinion, and I am unable to see that it is not a perfectly fair interpretation of the statute. While the connection is formed and only exists in this case by lines of road of the lessors, and while there can be no consolidation unless the companies whose roads form the connection are consolidated, it is equally true that there is no consolidation as to these lessor companies in law or fact. Moreover, the statute, which makes ample provision for the protection of the stockholders of the consolidating companies, makes none with respect to the stockholders of the lessor companies; nor is there any word, as I read the provision in relation to consolidation, which properly or naturally refers to lines held by lease. True, under the former as under the present statute, the power to consolidate may, in general, have been in obeyance in the lessor company; but it was the lessor's voluntary act if its power in this respect was suspended; and it is equally true that upon termination of the lease for any cause, the power to consolidate would revive with all its force.

Suggestion is made that the danger of defeating the consolidation by non payment of rent, or the like, and consequent forfeiture of the lease, was not greater than the danger arising from the foreclosure of a mortgage, which practically might have the same effect as such forfeiture. If we admit this to be true, it does not militate against the construction we have given to the statute. The real question is as to the meaning of the words of the statute,

"lines of road." In IIarkrader v. Leiby, 4 Ohio St. 602, 612, the judge delivering the opinion said that "a mortgage is now treated in both courts (law and equity) as a mere security for the debt, and the mortgagee is permitted to use the legal title only for the purpose of making effectual such security." But the title of a lessee is very different, and the road so leased to it is not its line of road, in the sense of the statute, but the road of the lessor company. Inded, if we are permitted to depart from the plain words of the statute, and determine that where the control of a railroad by another company is permanent in its character, such ownership is sufficient to satisfy the requirement, it is difficult to see why a company having no other than leased lines, or one having permanent running arrangement with another, may not come within the provision. I am fully pursuaded that nothing of the sort was contemplated by the legislature

I have so far spoken in the main of the proper construction of the acts of 1848 and 1851. But, although certain changes have been introduced into the subsequent acts (3 Curwen, 1882, 1884; 3 Sayler, 1760, 1872; 4 Sayler 2950; Rev. Stats. § § 3300, 3379), there is nothing in any of them leading to any other conclusion in this respect than the one stated. Indeed, it is a well settled principle, that where a statute has undergone revision, it should be construed as before, unless the new act plainly requires a change in the construction. Application has been given to this principle in cases where the change was very marked. Williams v. The State, 35 Ohio St. 174. And it is also a well settled rule that, it being of the very essence of a law that it be uniform and un

changeable, whatever was the meaning of a statute when first enacted, should be its meaning through all future time. Reed v. Evans, 17 Ohio, 128, 134. This, of course, is to be taken with the qualification that such statute, though unchanged in its language, may be modified or controlled in its operation by a subsequent statute. subsequent statute. Slater v. Cave, 3 Ohio St. 80. But there is nothing in the present statutes requiring any different construction, in the particular under consideration, than should have been placed on the former acts.

In holding that lines held by lease are not within the provisions as to consolidation found in section 3379, we give expression to that which seems to be the plain construction of our statute. But if we regarded the question as doubtful, the result should be the same; for it is a principle perfectly well settled, that where a statute granting corporate power admits of two probable but conflicting constructions, that construction should be given to it

which is least favorable to the existence of the power. In no case is this principle more distinctly asserted than in Straus v. Eagle Ins. Co., 5 Ohio St. 59.

We are told that other consolidations, based on such leased lines, have been made, and that the Secretary of State has received and filed the certificates of such consolidation, and furnished copies thereof. No doubt the practical construction which the statute has received in the Executive Department of the Government, may in some cases aid in its construction. Work v. Corrington, 34 Ohio St. 64, 75. But we are not advised that there has been such uniform usage in that particular as to afford aid in the interpretation of this statute, much less control its construction.

But there is another view of this case to which I assent and that view leads to the same result. It, is in respect to the situation of these roads, and the relation they bear to each other, without special reference to the title by

which they are held. It is admitted, "That for many years last past, a very large commerce has existed between the portions of the United States lying southerly, southeasterly and southwesterly of Cincinnati, on the one hand, and the regions conveniently reached by the commerce of Lake Erie, and of the great lakes connected therewith, on the other hand. That the course of this -commerce has been such that goods, wares and merchandise in large amounts, have been brought to the city of Cincinnati by the transportation lines upon the Ohio River, and by the railroad lines converging at Cincinnati, and the same has been transported by the railroads running through the State of Ohio to points upon Lake Erie, and thence transported by the way of the lakes, and the railroads running from cities upon the lakes to the Atlantic Seaboard and the Northwestern States. That owing to the great competition existing between the transportation lines upon Lake Erie, the rates of transportation of merchandise from either Cleveland, Sandusky or Toledo to points upon the said great lakes, except Lake Erie, either easterly or westerly, from the said cities, have been generally the same to and one of such points, notwithstanding the difference as to distance in favor of either of the said cities; so that merchandise going from either of said cities through the said lakes and destined to any point, either upon the Atlantic Seaboard or in the Northwestern States, or any intermediate point east of and including Buffalo, generally paid the same rates for transportation upon the lakes, whether they were shipped from either Cleveland, Sandusky or Toledo. That previous to the 8th day of July, 1881, there was an active competition between the aforesaid Cleveland, Columbus, Cincinnati and Indianapolis Railway Company and the aforesaid Cincinnati, Hamilton and Dayton Railroad Company in respect to the said transportation business from Cincinnati to points upon Lake Erie, and great rivalry existed as to the obtaining and conducting of such transportation business. That the said railroad companies respectively connected the said city of Cincinnati with the ports of Cleveland and Toledo on Lake Erie."

The Cleveland, Columbus Cincinnati and Indianapolis Railway and the Cincinnati, Hamilton and Dayton Railroad, with their leased lines, constitute two great arteries of trade, both commencing on the Ohio river at Cincinnati, meeting at Dayton, and extending thence to Lake Erie, one terminating at Cleveland, and the other at Toledo. The Attorney General says, and the record supports the statement, that these roads are "for sixty miles lying parallel and near to each other." That

they are, indeed, in the largest sense, parallel and competing roads, seems to be beyond dispute, and it may be fairly inferred from the record that a leading object in making the consolidation was to destroy that competition. That being true, the lines of these roads are not, in my judgment, "so constructed as to admit the passage of burden or passenger cars over two or more of such roads continuously," within the proper meaning of section 3379. That the mere physical ability to pass cars from one road to the other satisfies the statute, is a construction of it which is wholly inadmissible, for the provision requiring such connection would be without meaning. In imposing that restriction upon consolidation, the Legislature intended, not merely that the physical fact should exist, but that such consolidation should only be made for the very purpose of passing freight and passengers over both lines, or some material parts thereof, not necessarily in a direct or straight line, but continuously.

Counsel for the defendants insist that in construing statutes, regard must be had to the words. No doubt that is true; but it does. not follow that regard is to be had to nothing else Mr. Bishop says that courts "do not close their eyes to what they know of the history of the country and of the law, of the condition of the law at a particular time, of the public necessities felt, and other like things." Bishop's Stat. Cr. § 77. In Logan v. Courtown, 13 Beav. 22, 29, it was said that in construing a statute, regard must be had to "the words in which it is expressed, applied to the facts existing at the time." In Brewer v. Blougher, 14 Peters, 178, 198, Taney, C. J., said: "It is undoubtedly the duty of the court to ascertain the meaning of the legislature from the words used in the statute, and the subject matter to which it relates; and to restrain its operation within narrower limits than its words import, if the court are satisfied that the literal meaning of its language would extend to cases which the legislature never designed to embrace in it." Cooley's Con. L. (4th ed.) 79; Maxwell on Stats. 16–25.

Having regard to the language of this statute, in the light of such aids as are here indicated, I am satisfied the legislature never intended that railroads situated as these are should be regarded as constructed for the carriage of freight and passengers continuously, in the manner contemplated by the section. Indeed, each of these consolidating companies had a line for the carriage of freight and passengers from Cincinnati to Lake Erie, con. tinuously, without break or interruption," and