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ing railroad companies under Rov. Stats. Ở 3381, which As the southern terminus of the first named fails to show any place of residence of the directors of

road is twenty-four miles from the northern terthe new company, is fatally defective.

minus of the latter road, being the distance beGeorge K. Nash, Attorney General, B. H. Bristow, A. F. Perry, E. A. Ferguson, Converse, by the defendants that the consolidation could

tween Springfield and Dayton, it is not claimed Booth & Keating, and R. C. Parsons for the State.

be effected under authority of that section, if the R. P. Ranney, Harrison, Olds & Marsh, S. power to consolidate can only be exercised where Burke, W. B. Sanders and O'Conner, Glidden & burden and passenger cars can pass from the Burgoyne, for the defendants.

road of one company to the road of the other,

"continuously, without break or interruption." OKEY, C. J.

It is said, however, that it is not essential to a George K. Nash, Attorney General, on October valid consolidation that such companies' own 25, 1881, filed in this court a petition in quo lines should be thus connected, but that where warranto. The action is against William H. the consolidating companies, or either of them, Vanderbilt and other persons named, and it is al- holds from another railroad company a perpetual leged in the petition that those persons, with lease of its road, and such leased line is so conothers too numerous to be brought before the structed that cars may thus pass from the line court, have usurped the franchise to be a body

to be a body of the lessee to the leased line, and from the corporate, under the name of the Ohio Railway latter line to the line of the other consolidating Company, and that they wrongfully claim to company,the latter company and such lessee may possess certain corporate franchises, powers and consolidate; in other words, that such leased line privileges. The prayer is for judgment ousting is embraced by the words of the section, "lines the defendants from exercising such franchises, of road” of the consolidating companies. powers and privileges. The record consists of

As each of the consolidating companies is the petition, answer, reply, and an agreed statements of facts.

possessed of such leased lines, by means of The burden is on the defendants to show hy

which it is said such connection is made, the what authority they claim to exercise such pow- importance of this contention of the defenders, and the ordez of trial is the same as if the

ants is manifest, and hence it is proper to state cause was for hearing on testimony. Conse- more definitely the condition and situation of quently, wehave held that under the statute (Rev. the several roads affected by this controversy. Stats. $8 5190, 6760, 6772), the defendants were The line of the Cleveland, Columbus, Cinentitled to open and close in the argument. cinnati and Indianapolis Railway Company, as

The defendants claim to be such corporation, already stated, extends from Cleveland to clothed with such powers and privileges, under Springfield. This is by way of Galion, in authority of certain proceedings had in the Crawiord county, and Delaware, in Delaware months of July and September, 1881, whereby the Cleveland, Columbus, Cincinnati and Indi county: It also extends from the latter place anapolis Railway Company, and the Cincinnati,

to Columbus, in Franklin county; and anHamilton and Dayton Railroad Company, Ohio

other part of its line, extending from Galion corporations, were consolidated into one corpora

to Indianapolis, Indiana, crosses the track of tion, under the corporate name of the Ohio Rail- the Dayton and Michigan Railroad Company way Company,

at Sidney, in Shelby county. This constitutes The Cleveland, Columbus, Cincinnati and In- | the line of road which it owns. dianapolis Railway Company is a corporation, The Cincinnati and Springfield Railway with a line of railroad extending in a north-west Company is a corporation with a line of raildirection from Cleveland, in Cuyahoga County, road extending from a point near Cincinnati to Springfield, in Clark county, a distance of one hundred and sixty-three miles; and the Cincin

to Dayton It also has by lease from the Cin. nati, Hamilton and Dayton Railroad Company cinnati, Sandusky and Cleveland Railroad is a corporation, with a line of railroad extend Company, a line of railroad extending from ing from Cincinnati, in Hamilton county, via Springfield to Dayton. These two lines do Hamilton, in Butler county, to Dayton, in Mont- not directly connect at Dayton, but by argomery county, Dayton being in a direction east rangement between the Cincinnati and Springof north from Cincinnati, and distant therefrom field Railway and other railroad companies, a sixty miles. The authority to make the alleged connection is made between the two roads, by consolidation is based by the defendants on sec

means of a road used in common by several tion 3379 of the Revised Statutes, which is as follows: “When the lines of road of any rail

railroad companies. In 1871, the Cincinnati road companies in this State, or any portion of

and Springtield Railroad Company (party of such lines, have been or are being so constructed

the first part), the Cleveland, Columbus, CinAs to admit the passage of burthen or passenger

cinnati and Indianapolis Railway Company cars cver any two or more of such roads continu. | (party of the second part), and the Lake Shore ously, without break or interruption, such com- and Michigan Southern Railway Company panies may consolidate themselves into a single (party of the third part), executed an instru. company.

ment in writing, called by the defendants &

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conveyance of the fee, or at least a perpetual each, and to promote the interests of the pub-
lease, to the party of the second part, and by lic and the parties hereto.”
the relator called a running arrangement be- The lessor companies have at all times
tween the parties, which instrument contains maintained their organizations.
numerous stipulations with reference to the In 1863, the Dayton and Michigan Railroad
construction of the line between Cincinnati Company (party of the first part), owning &
and Dayton, the division of the earnings, and line of railroad from Dayton to Toledo, in
other matters, and by force of which agree- Lucas county, via Sidney, a distance of one
ment the Cleveland, Columbus, Cincinnati and hundred and forty miles, executed to the Cin-
Indianapolis Railway Company acquired the cinnati, Hamilton and Dayton Railroad Com.

right to run its cars from the terminus of its pany (party of the second part), a perpetual
road in Springfield to Cincinnati, via Dayton, sease of its road, which lease was modified by
and care of that company pass regularly over agreement, under the seals of the parties, in
the roads stated, without break or interrup- 1870. This instrument, so modified, contained

, tion, from Cleveland to Cincinnati, a distance numerous covenants, among others an agreeof two hundred and forty-three mlles.

ment by the party of the second part to pay to Among the stipulations in that instrument the stockholders of the party of the first part it is proper to mention the following:

certain dividends, and by the instrument the “Nothing herein contained shall operate to

continued existence and organization of the grant and demise, or be construed to include Dayton and Michigan Railroad Company is the franchises to be a corporation granted to contemplated. The lease contains this clause:


assigns, shall at any time hereafter, fail to pay said or any other right, privilege or franchise

dividends to the stockholders of said party of the first which is, or may be, necessary to preserve the part, as herein before provided for, or shall fail to keep corporate existence or organization of the

and perform any of the other covenants and agreements

in said lease (as hereby modified) contained, on its part party of the first part, and all the said to be kept and performed, and shall continue in such defranchises to be a corporation, and all the

fault for the period of ninety days, then, and in every

such case, it shall be lawful for the party of the first part, rights, privileges and franchises last aforesaid

its successors and assigns, at its or their option, without are reserved and excepted from these presents.

demand, to enter into and upon said demised premises

and remove all persons therefrom; and from thenceforth And said party of the first part further cove.

the said demised premises and all additions and imnants and agrees, that .upon the written re- provements which shall or may bave been made to the quest of said second party, its successors or

saine, shall be held by the party of the first part, as of its

first and former estate; and upon such entry for nonassigns, it will appropriate, under the laws of payment of rent, or breach, or non-performance of any the State of Ohio, such real estate, rights and

agreement or covenant, all estate of said party of the

second part in said demised premises, and the additions interests as shall be required for the main- thereto, shall cease and determine, and the party of the tenance and operating of said railway; and

second part hereby covenants and agrees upon the deter

mination of said lease for the causes aforesaid, to surthe costs and damages thereof shall be paid by render and deliver up to the party of the first part, its the party of the first part.”

successors or assigns, the said demised premises, includ.

ing rolling stock, equipment, machinery and tools, equal “At the end of ten years from the delivery to that now on said premises, in as good order and conof possession of said Cincinnati and Spring

dition, as the same may be at this time in, together with

all additions and improvements that may be made field Railway Company's railway to the said thereto." party of the second part, the railway and ap- The agreed statement of facts contains the purtenances of the said party of the second following: “Said Dayton and Michigan Railpart shall be consolidated with the railway and road Company has, ever since said indenture appurtenances of the said party of the first as before it, maintained and kept up its organpart, in case the laws of Ohio shall then per- ization as a corporate body by regular elecmit and authorize such consolidation to be tions of directors and officers, keeping a busimade, and said consolidation shall be made

ness office, and in all things conforming to the upon the basis of the proportionate values of provisions of its charter and the laws of the the respective railways and appurtenances of State as a railroad company." said first and second parties, as the same shall Burden and passenger trains pass regularly appear by the net earnings of each for the

over these roads (the Cincinnati, Hamilton and three years next preceding the time of such Dayton Railroad and the Dayton and Michiconsolidation."

gan Railroad), without break or interruption, “The intent and purpose of this indenture from Cincinnati to Toledo, a distance of two is to form and construct a shorter and contin- | hundred miles. uous railway between Buffalo, N. Y., and The Cincinnati, Hamilion and Dayton RailCincinnati, Ohio, of uniform gauge, for the road Company also controls and operates the transportation of persons and property be following lines of railroad under leases, that tween the last hamed cities and places beyond is, the Cincinnati, Richmond and Chicago


Railway, extending from Hamilton to Rich- poration shall be authorized to construct and mond, Indiana, and the Cincinnati, Hamilton maintain a railroad, with a single or double and Indianapolis Railway, extending from track, with such side tracks, turn-outs, offices Hamilton to Indianapolis.

and depots, as they may deem necessary, beAt Dayton cars may pass from the lines so tween the points named in the special act inunder the control and management of the corporating the same, commencing at or withCleveland, Columbus, Cincinnati and Indian- | in, and extending to or into any town, city or apolis Railway Company to the lines so under village named as the place of beginning or the control and management of the Cincinnati, terminus of such road, and construct branches Hamilton and Dayton Railroad Company, from the main line to other towns or and vice versa. The hiatus at that place be places within the limits of any county through tween the northern terminus of the Cincin which said road may pass. nati and Springfield Railway and the southern

Previous to 1851, special provision was made terminus of the Cincinnati, Sandusky and in the charters of certain railroad companies for Cleveland Railroad, supplied by arrangement consulidation with other specified companies, with and used in common by all the railroads but there was no general law upon the subject. at that place, as already stated, consists of two The act of 1851, "relating to railroad companies" tracks, and all cars going in one direction pass (2 Curwen, 1056), provided as follows: "Whenover one of the tracks, and all cars going in ever the lines of railroad of any railroad comthe other direction pass over

the other panies in this State, or any portion of such lines, track.

have been or may be constructed so as to admit At Sidney the track of the Dayton and

the passage of burden or passenger cars over any

two or more of such roads continuously, without Michigan Railroad, so operated by the Cincin- break or interruption, such companies are herenati, Hamilton and Dayton Railroad Com- by authorized to consolidate themselves into a pany, crosses the line of the Cleveland, Colum- single corporation.” This evidently is to be unbus and Indianapolis Railway, leading from derstood as referring to the line of each road, but Galion to Indianapolis, eighteen feet above the word is made plural in form for the reason. the track of the latter road, and the two roads that the two companies are referred to in the are connected at that place by a side track eix

same form. And it was required, furthermore, hundred feet in length, by using which cars

by that act, that the agreement between the dimay pass from one road to the other.

rectors of the consolidating companies should

specify, among other things, “the manner of If we regard the instrument by which the converting the shares of capital stuck, in each of Cleveland, Columbus, Cincinnati and Indian

said two or more corporations, into shares in such apolis Railway Company acquired the right to new corporation, (and) and the manner of, comoperate and control the Cincinnati, Sandusky pensating stock-holders, in each of said two or and Springfield Railroad between Springfield more corporations, who refuse to convert their and Dayton, and the Cincionati and Spring- stock into the stock of such new corporation. field Railroad between Cincinnati and Dayton, either of such corporations, who shall refuse to

* * * Provided, that all stock-holders, in as a permanent lease, we state the case as favorably for the defendants as the

law and the convert their stock into the stock of such new fact will warrant; and the same thing is true

corporation, shall be paid at least par value for with respect to the instrument under which

each of the shares so held by them, if they shall the Cincinnati, Hamilton and Dayton Railroad

so require, previous to the consolidation being

consummated." And it was further provided, Company operates and controls the Dayton in effect, that when such consolidation was efand Michigan Railroad. We recur then to fected, the consolidating companies should cease the question whether lines held by leases are to exist, and “all and singular their rights and within the terms of section 3379. In order interests, in and to every species of property, to determine that question, it is proper to con

real, personal and mixed, and things in action, sider all the legislation upon the subject.

shall be deemed to be transferred to and vested The Cleveland, Columbus, Cincinnati and

in such new corporation, without any other

deed or transfer." Indianapolis Railway Company, and the Cincinnati, Hamilton and Dayton Railroad Com- Apart from the provision relating to consolpany, were each subject to all the restrictions idation, and wholly independent.of it, the same and conditions prescribed in the act of 1848,

act provided that any railroad company organ“regulating railroad companies”, (2 Curwen,

ized in pursuance of law might lease any part

or all of any railroad constructed by any other 1394), and the amendments thereto, and are subject to the restrictions and conditions of all company, if the lines of such lessor and lessee

were continuous or connected, "upon such terms general laws of the State relating to railroads

as may be agreed on between said companies. and railroad companies. The act of 1848, respectively." This was the first general proprovided by section two as follows: “Said cor- vision on the subject.

By force of such lease the right to the use "lines of road.” In IIarkrader v. Leiby, 4 Ohio of the road passed from the lessor to the les- St. 602, 612, the judge delivering the opinion see, according to such terms and conditions said that “ a mortgage is now treated in both with respect to the use as are proper in a lease, courts (law and equity) as a mere security for but it seems clear that nothing else passed the debt, and the mortgagee is permitted to

. In Pennsylvania it is said, “that the lessee is use the legal title only for the purpose of mak. the assignee for a term or period of the lessor ing effectual such security.". But the title of -his bailift to hold possession for him." a lessee is very different, and the road so leased Penn. R. Co v. Sly, 65 Pa. St. 205. In case to it is not its line of road, in the sense of the of consolidation by the lessee with ano therrail- statute, but the road of the lessor company.

. road company, the rights of the lessee under Inded, if we are permitted to depart from the that lease, passed to the new company; but the plain words of the statute, and determine that corporation thus leasing its road retained unim- where the control of a railroad by another paired its corporate existence, powers and company is permanent in its character, such privileges, except as affected by the agreement ownership is sufficient to satisfy the requirefor such use, and among the powers so retained ,

ment, it is difficult to see why a company havby the lessor was that of consolidation. In ing no other than leased lines, or one having a other words, the power to take a lease does not permanent running arrangement with another, imply a power to consolidate, nor does the may not come within the provision. I am fully power to consolidate imply a power to lease, pursuaded that nothing of the sort was con- . but the powers are distinct and independent. templated by the legislature

. Evidently that was the view taken by the parties when the lease to the Cleveland,

I have so far spoken in the main of the Columbus, Cincinnati and Indianapolis Rail

proper construction of the acts of 1848 and way was executed, as will appear from the

1851. But, although certain changes have extracts from that instrument quoted in this

been introduced into the subsequent acts (3 opinion, and I am unable to see that it is not

Curwen, 1882, 1884; 3 Sayler, 1760, 1872; 4 a perfectly fair interpretation of the stat

Sayler 2950 ; Rev. Stats. & $ 3300, 3379), there ute. While the connection is formed and is nothing in any of them leading to any other only exists in this case by lines of road of the

conclusion in this respect than the one stated. lessors, and while there can be no consolida- Indeed, it is a well settled principle, that where tion unless the companies whose roads form

a statute has undergone revision, it should be the connection are consolidated, it is equally construed as before, unless the new act plainly true that there is no consolidation as to these requires a change in the construction. Applicalessor companies in law or fact. Moreover,

tion has been given to this principle in cases the statute, which makes ample provision for

where the change was very marked. Williams the protection of the stockholders of the con

v. The State, 35 Ohio St. 174. And it is also solidating companies, makes none with respect

a well settled rule that, it being of the very esto the stockholders of the lessor cornpanies;

sence of a law that it be uniform and unnor is there any word, as I read the provision changeable, whatever was the meaning of a in relation to consolidation, which properly or

statute when first enacted, should be its meannaturally refers to lines held by lease. True,

ing through all future time. Reed v. Evans, under the former as under the present statute,

17 Ohio, 128, 134. This, of course, is to be the power to consolidate may, in general,

taken with the qualification that such statute, have been in obeyance in the lessor company;

though unchanged in its language, may be but it was the lessor's voluntary act if its power

modified or controlled in its operation by a in this respect was suspended ; and it is equally subsequent statute. Slater v. Cave, 3 Ohio St. true that upon termination of the lease for any

80. But there is nothing in the present statcause, the power to consolidate would revive

utes requiring any different construction, in with all its force.

the particular under consideration, than

should have been placed on the former acts. Suggestion is made that the danger of de- In holding that lines held by lease are not feating the consolidation by non payment of within the provisions as to consolidation found rent, or the like, and consequent forfeiture of in section 3379, we give expression to that the lease, was not greater than the danger which seems to be the plain construction of arising from the foreclosure of a mortgage, our statute. But it we regarded the question which practically might have the same effect as doubtful, the result should be the same; as such forfeiture. If we admit this to be true,

If we admit this to be true, for it is a principle perfectly well settled, that it does not militate against the construction we where a statute granting corporate power ad. have given to the statute. The real question is as mits of two probable but conflicting constructo the meaning of the words of the statute, tions, that construction should be given to it


which is least favorable to the existence of the they are, indeed, in the largest sense, parallel power. In no case is this principle more dis- and competing roads, seems to be beyond distinctly asserted than in Straus v. Eagle Ins. pute, and it may be fairly inferred from the Co., 5 Ohio St. 59.

record that a leading object in making the We are told that other consolidations, based consolidation was to destroy that competition. on such leased lines, have been made, and that That being true, the lines of these roads are the Secretary of State has received and filed not, in my judgment, “so constructed as to adthe certificates of such consolidation, and mit the passage of burden or passenger cars furnished copies thereof. No doubt the prac- over two or more of such roads continuously,” tical construction which the statute has re- within the proper meaning of section 3379. ceived in the Executive Department of the That the mere physical ability to pass cars Government, may in some cases aid in its con- from one road to the other satisfies the statute, struction. Work v. Corrington, 34 Ohio St. is a construction of it which is wholly inad64, 75. But we are not advised that there has missible, for the provision requiring such conbeen such uniform usage in that particular as nection would be without meaning. In imto afford aid in the interpretation of this posing that restriction upon consolidation, the statute, much less control its construction. Legislature intended, not merely that the

But there is another view of this case to which I assent physical fact should exist, but that such conand that view leads to the same result. It, is in respect solidation should only be made for the very to the situation of these roads, and the relation they bear purpose of passing freight and passengers over to each other, without special reference to the title by both lines, or some material parts thereof, not wbich they are held. It is admitted, “That for many

necessarily in a direct or straight line, but years last past, a very large commerce has existed beiweon the portions of the United States lying southerly, continuously. southeasterly and southwesterly of Cincinnati, on the Counsel for the defendants insist that in one hand, and the regions conveniently reached by the commerce of Lake Erie, and of the great lakes connected construing statutes, regard must be had to the therewith, on the other hand. That the course of this

words. No doubt that is true; but it does commerce has been such that goods, wares and merchandise in large amounts, have been brought to the city

not follow that regard is to be had to nothing of Cincinnati by the transportation lines upon the Ohio else River, and by the railroad lines converging at Cincinnati,

Mr. Bishop says that courts “do not and the same has been transported by the railroads run- close their eyes to what they know of the hisping through the State of Ohio to points upon Lake Erie, tory of the country and of the law, of the conand thence transported by the way of the lakes, and the railroads running from cities upon the lakes to the Atlan

dition of the law at a particular time, of the tic Seaboard and the Northwestern States. That owing public necessities felt, and other like things.” to the great coinpetition existing between the transportar | Bishop's Stat. Cr. § 77. tion lines upon Lake Erie, the rates of transportation of

In Logan v. merchandise from either Cleveland, Sandusky or Toledo Courtown, 13 Beav. 22, 29, it was said to points upon the said great lakes, except Lake Erie, either easterly or westerly, from the said cities, have been

that in construing a statute, regard must generally the same to and one of such points, notwith

be had to “the words in which it is exstanding the difference as to distance in favor of either of pressed, applied to the facts existing at the said cities; so that merchandise going from either of said cities through the said lakes and destined to any

the time.” “In Brewer v. Blougher, 14 Peters, point, either upon the Atlantic Seaboard or in the North- 178, 198, Taney, C. J., said: "It is undoubt. western States, or any intermediate point east of and including Buffalo, generally paid the same rates for trans

edly the duty of the court to ascertain the portation upon the lakes, whether they were shipped meaning of the legislature from the words from either Cleveland, Sandusky or Toledo. That pre„yious to the 8th day of July, 1881, there was an active

used in the statute, and the subject matter to competition between the aforesaid Cleveland, Columbus, which it relates; and to restrain its operation Cincinnati and Indianapolis Railway Company and the aforesaid Cincinnati, Hamilton and Dayton Railroad

within narrower limits than its words import, Company in respect to the said transportation business

if the court are satisfied that the literal meanfrom Cincinnati to points upon Lake Erie, and great ing of its language would extend to cases rivalry existed as to the obtaining and conducting of such transportation business. That the said railroad

which the legislature never designed to emcompanies respectively connected the said city of Cincin- brace in it." Cooley's Con. L. (4th ed.) 79; nati with the ports of Cleveland and Toledo on Lake Erie."

Maxwell on Stats. 16-25. The Cleveland, Columbus Cincinnati and Having regard to the language of this statIndianapolis Railway and the Cincinnati,

Cincinnati, ute, in the light of such aids as are here indiHamilton and Dayton Railroad, with their cated, I am satisfied the legislature never inleased lines, constitute two great arteries of tended that railroads situated as these are trade, both commencing on the Ohio river at should be regarded as constructed for the carCincinnati

, meeting at Dayton, and extending riage of freight and passengers continuously, in thence to Lake Erie, one terminating at Cleve- the manner contemplated by the section. Inland, and the other at Toledo. The Attorney deed, each of these consolidating companies General says, and the record supports the had a line for the carriago of freight and passtatement, that these roads are "for sixty miles sengers from Cinoinpati to Lake Erie, "con. lying parallel and near to each other.” That tinuously, without break or interruption,” and


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