Univ.°f ill* Librar^j IIVEL3ITyoFauNa|g URBANA 53 3U9*/- Itohert Clarke & Co., Printers, Cincinnati.] [ February, 1882. ak Street LASSIFIED SUPREME COURT OF OHIO. THE STATE OF OHIO, ON THE RELATION OF GEORGE K. NASH, ATTORNEY GENERAL, Plaintiff, AGAINST WILLIAM IT. VANDERBILT, AND OTHERS, * » Defendants. IN QUO WARRANTO. * J. H. DEVEREAUX, AND OTHERS, Plaintiffs in Error, versus. HUGH J. JEWETT, TRUSTEE, AND R. SUYDAM GRANT, Defendants in Error. ON PETITION IN ERROR. ARGUMENT IN SUPPORT OF THE PETITION IN QUO WARRANTO, AND AGAINST THE PETITION IN ERROR. By AARON F. PERRY. IF'URY' U#IVEl3ITY OF IUIN9I3 UR8ANA SUPREME COURT OF OHIO. THE STATE OF OHTO, ON THE RELATION OF GEORGE K. NASH, ATTORNEY GENERAL, AGAINST Plaintiff, WILLIAM H. VANDERBILT, AUGUSTUS SCHELL, JAMES H. BUTLER, A. G. DULMAN, WILLIAM L. SCOTT, J. H. DEVER- EAUX, STEVENSON BURKE, T. P. HANDY, AMOS TOWN¬ SEND, JOHN NEWELL, M. E. INGALLS, and JOHN CARLISLE. Defendants. IN QUO WABKANTO. ARGUMENT IN SUPPORT OF THE PETITION, By AARON F. PERRY. STATEMENT. The petition alleges that the defendants, and other persons so numerous that it is impracticable to bring them all before the court, are acting and assuming to act as a corporation, and an incorporated company within the State of Ohio, to wit, in the county of Cuyahoga, without being legally authorized so to do; and that they are assuming to exercise and are exercising, within the State of Ohio, cer¬ tain liberties, privileges, franchises, and authorities not warranted by law, and for more than days last past have used and are still using, without any grant, war¬ rant, or charter, the liberties, privileges and franchises of being a body corporate in fact, law and name, and by the name of “ The Ohio Railway Company, 7 ’ etc., etc. The defendants answer that they and their associates lawfully and rightfully have, hold, exercise and enjoy, un¬ der the corporate name of “ The Ohio Railway Company , 77 the liberties, privileges, tranches and authorities named in the petition, and each and all of them. They allege title to the franchises of said corporation by and through certain proceedings, the legal result of which they allege to be a consolidation of other railway corporations, before exist¬ ing, into the Ohio Railway Company, whereby it became a lawful corporation under the laws of Ohio. The answer contains statements of the organization and existence, be¬ fore said proceedings for consolidation, of seven railway corporations, and states the lines of road represented by them, all of "which are relevant to the case, but the allega¬ tions concerning them are too extended for a preliminary statement. The state replies, contesting some of the allegations of fact made in the answer, and denying the legal validity of the proceedings for consolidation. On the pleadings and on an agreed statement of facts the case is presented for argument. Two parallel and competing lines of railway extend from the Ohio river systems of transportation to the lake system. The southern termini of both lines are at Cincin¬ nati. The northern terminus of the most western line is at Toledo, and the northern terminus of the most eastern line is at Cleveland. The most western of the two lines is made up of two' parts which meet each other at Dayton, the part between Cincinnati and Dayton being owned in ♦ fee simple by the Cincinnati, Hamilton and Dayton Rail¬ road Company, which stocks and works it; the part be¬ tween Dayton and Toledo was constructed by the Dayton and Michigan Railroad Company, but is and for many years has been stocked and worked by the Cincinnati, Ham¬ ilton and Dayton Company under a contract with the Day- ton and Michigan Company for a permanent running ar¬ rangement and apportionment of earnings, with conditions of defeasance and mutual stipulations. The Cincinnati, Richmond and Chicago railway connects with the road of the Cincinnati, Hamilton and Dayton Company, at the city of Hamilton, Ohio, extends to the city of Richmond, Indi¬ ana, and is stocked and worked by the Cincinnati, Hamil¬ ton and Dayton Company, under a contract with the* Cin¬ cinnati, Richmond and Chicago Company, similar in most respects with the contract in regard to the Dayton and Michigan road; but, under this contract, all the net earn¬ ings are to be paid to the Cincinnati; Richmond and Chi¬ cago Company. The Cincinnati, Hamilton and Indianap¬ olis railway connects with the Cincinnati, Hamilton and Dayton railway at said Hamilton, extends westwardly to Indianapolis, in Indiana, and is stocked and worked by the Cincinnati, Hamilton and Dayton Company, which owns a controlling interest in the stock of the Cincinnati, Hamil¬ ton and Indianapolis Company, to which it accounts. The arrangement between these companies does not more spe¬ cifically appear in the case. The most easterly of the two lines consists of three «/ parts. The Cleveland, Columbus, Cincinnati and Indian¬ apolis railway extends from Cleveland, via Delaware to Springfield. By means of the roads of other companies consolidated with it years ago, its line branches westward at Gabon, crosses the Dayton and Michigan road at Sidney, and extends thence westward to Indianapolis, in Indiana. Its main line, after branching at Delaware to Springfield, extends southwardly to Columbus, Ohio. Its northern terminus is at Cleveland, and its three southern and west- ern termini are at Columbus, Springfield and Indianapolis. The southern part of this general line is the Cincinnati and Springfield railroad, constructed by the Cincinnati and Springfield Railroad Company, and extending from Cincin¬ nati to Dayton. The Dayton terminus of this road is con¬ nected with the Springfield terminus of Cleveland, Colum¬ bus, Cincinnati and Indianapolis road, by using a part of the Springfield, Sandusky and Cleveland road. The line of the last mentioned road, constructed by the Cincinnati, Sandusky and Cleveland Railroad Company, extends from Sandusky, its northern terminus, via Springfield, to Day- ton, its southern terminus, and between those points constitutes a third parallel and competing line. That part of the last-mentioned line between Dayton and Springfield is, and for some years has been stocked and worked by the Cleveland, Columbus, Cincinnati and Indianapolis Company in connection with its own road from Springfield to Cleveland, and in connection with the Cincinnati and Springfield road between Dayton and Cincinnati. This is done under contracts of substan¬ tially the same general character before mentioned in con¬ nection with the Dayton and Michigan road. In this way the more eastern of the two through lines from Lake Erie to the Ohio river is made up. The Cleveland, Columbus, Cincinnati and Indianapolis Company and the Cincinnati, Hamilton and Dayton Com¬ pany, the former owning in fee simple the north part of the eastern through line, and the latter owning the south part of the western through line, deeming their relations with the other lines connected with them, as before stated, equiv¬ alent to ownership in the meaning of the statute, under¬ took proceedings to consolidate the two companies, which are the proceedings under discussion in this case. If the purpose is correctly understood, it was intended to connect the two roads owned in fee simple by tlie re¬ spective companies, over the road of another company be¬ tween Springfield and Dayton, which is stocked and worked by the Cleveland, Columbus, Cincinnati and Indianapolis Company under contract as before stated. It is also claimed by defendants that the crossing of the Dayton and Michigan road by the Cleveland, Columbus, Cincinnati and Indian¬ apolis road, at Sidney, allows passage of cars from one to the other in the manner required by law to authorize con¬ solidation. The Cleveland, Columbus, Cincinnati and In¬ dianapolis Company and the Cincinnati, Hamilton and Dayton Company are the only companies joining in the agreement for consolidation. The fact of consolidation between those two companies, would carry to the new company all the assets of the two companies, among the rest, all the lines of road held under contract by them, so far as their claims of ownership may be sustained. The agreement for consolidation accordingly provides that stockholders in the other four companies shall surrender their stock and the new company shall give them stock in the new company, in equal amounts at par value for the stock of the old companies. If correctly understood, how¬ ever, it does not extend to any part of the stock of the Cincinnati, Sandusky and Cleveland Company, from whom is held the contract for the road between Dayton and Springfield. The plan obviously comprises the consolida¬ tion of six railroad companies, whose corporate existence will be merged in one new company. It will also hold that part of the road of another company which extends from Dayton to Springfield, but not include any part of the stock of the company which built it. The arrangements between a number of the companies and the Cincinnati, Hamilton and Dayton Company, and with the Cleveland, Columbus, Cincinnati and Indianapolis Company, have been in this statement alluded to as con¬ tracts for permanent running arrangements. The defend¬ ants claim them to he perpetual leases, and, on that idea, claim ownership of. the lines. The contracts are Exhibited in the case. ARGUMENT. I. In order to restrain abuse of corporate fran¬ chises, granted in aid of the internal carrying trade of the United States, and to moderate the power of monopolies to make undue exactions, many of the States of the Union, among the rest, the State of Ohio, have adopted a legislative policy not to per¬ mit the union of parallel or competing lines of rail¬ way in one and the same interest, by aid, lease, pur¬ chase, consolidation, or otherwise. MICHIGAN. “ No railroad corporation shall consolidate its stock, property, or franchises with any other railroad corporation owning a parallel or competing line, and in no case shall any consolidation take place except upon public notice given of at least sixty days to all stocknolders, in such manner as shall be provided by law.” Constitution 1850, Art. ATX, Sec. 2. ILLINOIS. The constitution of Illinois, adopted in 1870, adopts, as a part of it, the same language as the constitution of Michigan. Art. X/., Sec. 11, Rev. Statutes of Illinois , 1880, p. 29. MISSOURI. No railroad or other corporation, or the lessees, pur¬ chasers, or managers of any railroad corporation shall consolidate the stock, property, or franchises of such cor- poration, with, or lease, or purchase the works or fran¬ chises of, or in any way control any railroad corporation owning or having under its control a parallel or compet¬ ing line ; nor shall any officer of such railroad corporation act as an officer of any other railroad corporation owning or having the control of a parallel or competing line. The question whether railroads are parallel or competing lines shall, when demanded, be decided by a jury as in other civil issues. Const, n of 1875, Art. XII., Sec. 17; Const 1 n of Penn., Art. XVII., Sec. 4. PENNSYLVANIA. The constitution of 1873 contains the same clause, * except that the provision is extended to canals as well as railroads. The provision in the Pennsylvania constitution, except so far as it relates to canals, appears to have been copied in the Missouri constitution. Penn. Const’n , Art. XVII., Sec. 4, Laws of Penn. 1874-75, p. 24. Pennsylvania Statute .—Any railroad maybe leased to any other railroad company, or enter into any other con¬ tract, on such terms as may be agreed : “ Provided , however , That such road or roads, so em¬ braced in any such lease, assignment, contract, or guar¬ antee, shall be connected either directly, or by means of intervening line , with the railroad or railroads of said com¬ pany or companies of this commonwealth so entering into such lease, assignment, contract, or guarantee, and thus forming a continuous route or routes for the transporta¬ tion of persons and property.” Laws of 1870, p. 31, Sec. 1. NEW HAMPSHIRE. The statute forbids, under penalties, one railroad com¬ pany, its directors, officers, or agents, to control a rival line, or consolidate with it ; and authorizes any citizen to apply to the Supreme Court, or any justice thereof, for an injunction, when the law in this respect is violated. New Hampshire Statutes , Revision of 1878, Chap. 158, Secs. 11, 12, 13, pp. 377, 378. MARYLAND. No railroad company to purchase or lease the road of another or consolidate with it, or any j:>art of it, “ with- out the authority of an act of the General Assembly . first had and obtained.” Rev. Statutes of Maryland, 1878, Sec. 21, p. 359. MINNESOTA. “Whenever the lines of railroad of any railroad cor- poration, . . . or any portion of such lines, have been or may be constructed so as to admit the passage of freight or passenger-cars over any two or more of such roads continuously without break or interruption.” Stat. at Large, 1873, Bissell, pp. 427, 428. Other parts of act like ours. TEXAS. “ No railroad corporation, or the lessees or purchasers or managers thereof, shall consolidate the stock, property, or franchises of such corporation with, or lease or pur¬ chase the works or franchises of, or in any way control any railroad corporation owning, or having under its con¬ trol, a parallel or competing line; nor shall any officer of such railroad corporation act as an officer of any other railroad corporation owning or having control of a com¬ peting or parallel line.” Rev. Stat. 1879, p. 610, Art. 4246. WEST VIRGINIA. No railroad corporation shall consolidate its capital stock with any other railroad running a parallel or com¬ peting line without the consent of the legislature, but any railroad may merge, or consolidate with, or lease its rail¬ road for a term of years, to any corporation owning or operating any connecting line of railroad wholly or partly within this State, in order to make a continuous line of railroad, etc. Rev. Stat. 1879, Vol. 2, p. 948, Sec. 23. IOWA. It shall be unlawful for any railway company to make any contract, or enter into any stipulation with any other railway company running in the same general direction, by which either company shall, directly or indirectly, agree to divide in any manner or proportion the joint earnings upon the whole or any part of the freight trans¬ ported over such roads, etc. McClain's Annotated Stat¬ utes, 1880, Vol. 1, p. 356, Sec. 1297. MAINE. No corporation can assign its charter or any rights under it; lease or grant the use or control of its road or of any part of it; or divest itself thereof, without consent of the legislature. Rev. Stat. 1871, Secs. 26, 23, p. 453. WISCONSIN. Railroad companies may consolidate when “con¬ structed wholly or in part, which, when completed and connected, will form in the whole or in the main one con¬ tinuous line of railroad , . . . provided, . . . not be construed to authorize the consolidation of any railroad companies or roads, except wiien by such consolidation a continuous line of roads is secured, running in the whole or in the main in the same general direction, and not law¬ ful when by so doing it will deprive the public of the benefit of competition between said roads.” Rev. Stat. 1879, p. 134. KANSAS. Any two or more railroad companies, which when completed and connected, will form a continuous line or lines of railroad, may consolidate. So, any railroad company may lease its road to any other railroad company whose line of road shall so connect with the leased road as to form a continuous line. Com¬ piled Raws of Kansas , 1881, Chap. 84, Secs. 47-49, p. 787. NEBRASKA. Every railroad company wdiose railroad or railroads, constructed or to be constructed within this State, shall be so situated wfith reference to any railroad constructed or to be constructed through any adjoining State, . . . that the same may be so connected, . * . by bridge, ferry, or otherwise, as to practically form a continuous line of railway over which cars may pass, may purchase the connecting line or sell to it. Statutes of Nebraska , com¬ pilation of 1881, pp. 304, 305. NEW YORK. Whenever tw r o or more railroads of the companies to be so consolidated shall or may form a continuous line of [ 10 ] railroad with each other, or by means of an intervening railroad, bridge, or ferry (7 N. Y. Statutes at Large, pp. 529, 530). A supplemental act provides that in any case •where two or more railroad companies shall have been, or shall hereafter be, organized under the general laws of this state, the whole of whose lines, as located by them re¬ spectivelyi, shall form one continuous and connecting line of road, the said companies may consolidate their lines of road, stock, franchises, and property according to the ex¬ isting laws of this state relating to the consolidation of railroad companies. General Statutes , 1875, p. 24, Chap. 108. INDIANA. The Act of March 3, 1805 (1 Davis’ St. 728), provides for the judicial sale of railroads under deeds of trust or mortgages, where the road lies part in that state and part in another, as an entirety; also, of road lying wholly in that state ; authorizes the purchasers or assigns to become incorporated, etc., and gives the new company power “ to consolidate with other railroad corporations in the continuous line , either within or without this state, upon such terms as may be agreed upon by the corporations owning the same.” Such corporation may also acquire, by purchase or contract, the road, etc., of 'any other railroad corporation which may cross or intersect its line; but expressly limits the acquisition in Indiana to such roads as may cross and intersect its line, and which have not been equipped and operated in whole or in part. Other acts authorize the connection of lines, in Special cases, and the joint use of the same line by different com¬ panies. Act of Alar eh 3, 1865 (1 Davis Stat. 1879, p. 717). Another statute (Davis Stat. 1876, p. 717) provides that any company shall have power to intersect, join, and unite thfdr railroad with any other railroad, constructed or in progress of construction in this state, or in any ad¬ joining state, at such point on the state line or at any other point as may be mutually agreed upon by said com¬ panies; and such railroad companies are authorized to merge and consolidate the stock of the respective compa¬ nies, making one joint stock company of the two railroads thus connected, upon such terms as may be by them mu¬ tually agreed upon, in accordance with the laws of the ad- [ 11 ] joining state with whose road or roads connections are thus formed: Provided their charters authorize said railroad^ to go to the state line, or to such point of intersection. REVISED STATUTES OF OHIO, 1880. Sec. 3300. “Any company may aid another in the construction of its road, by means of subscription to the capital stock of such company, or otherwise, for the pur¬ pose of forming a connection of the roads of the compa¬ nies, when the road of the company so aided does not form a competing line; any company may lease or purchase any part or all of a railroad constructed by another company, if the lines of such company are continuous or connected , and not competing , upon such terms and conditions as may be agreed upon between the companies; and any two or more companies, whose lines are so connected and not com¬ peting^ may enter into any arrangement for their common benefit consistent with arid calculated to promote the ob¬ jects for which they w r ere created.” Sec. 3368. Any company whose road forms part of any line of railway between points common to any other line shall not contract or agree with any person, or with any other railroad company or companies, having a road or line of roads, or forming a part of any line of roads between the same points, not to carry freight or passen¬ gers to or from such common points, nor shall it refuse to receive or carry any freight or passengers brought to it to be so carried. Sec. 3379. “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 burden or passenger cars over any two or more of such roads continuously, without break or interruption, such companies may consolidate themselves into a single com¬ pany.” Sec. 3380. “A company organized in this State, and whose line of road is made, or is in process of construc¬ tion, to the boundary line of the state, or to any point either in or out of the state, may consolidate its capital stock with the capital stock of any company in an ad¬ joining state, the line of whose road has been made or is in process of construction to the same point, when the [ 12 1 several roads so united will form a continuous line for the , passage of cars ; and roads running to the bank of a river which is not bridged shall be held to be continuous, under this section.” In Taylor v. Atlantic and G-reat Western Railroad Co., 57 How. Pr. (Y. Y.) 26, Mr. Justice Daniels, delivering the opinion, referred to the statute authorizing consolidation of railroads, and said : “ It may be, as it should be, conceded at the threshold of the discussion that corporations, railroads as well as others, must be confined in their acts within the limits of the authority affirmatively given to them or appropriately requisite for the attainment of the objects they are de¬ signed to accomplish ; and under the effective operation of this principle for whatever they do, some warrant of legal authority must be found. The principle is salutary, and its observance should be watched and guarded, in order to prevent corporations from becoming what they are so often inclined to become, unrestrained and destructive monopo¬ lies of individual enterprise. But if, with that restriction, their acts appear authorized, then they are to be sus¬ tained, the same like all other exertions of lawful au¬ thority.” The first general act of Ohio authorizing consolida¬ tion of railway companies was the act of March 3, 1851 (2 Curwen, 1656, 1657), when constructed, etc., “ so as to admit the passage of burden or passenger cars over any two or more of such roads continuously, without break or interrup¬ tion .” The act of May 1, 1852, so far as it referred to consolidation, was the. same as the act of 1851 (3 Curwen, 1882-4). The act of 1851 applied to companies under previously existing special laws ; the act of 1852 was the general railroad act under the then new constitution. The consolidation clauses of the acts of 1851 and 1852 referred only to railroad companies “ in this state.” The [ 13 ] act of April 10, 1856 (4Curwen, 2791), referred to railroad companies in this state whose lines of road “shall be made or in process of construction to the boundary line of the state, or to any point either in or out of the state and au¬ thorized them to consolidate their stock with the capital stock of “ any railroad in an adjoining state, the line of whose road has been made or is in process of construction to the same point, and where the several roads so unite as to form a continuous line for the passage of cars ; provided, that roads running to the bank of any river which is not bridged shall be held to be continuous under this act.” The language of this act did not require that the un¬ bridged river spoken of should be on the state line or in another state. It left a possible implication that consoli¬ dation between Ohio companies might not be held to form a continuous line, if the two were separated by an un¬ bridged river, because the provision for consolidating do¬ mestic companies contained no such proviso. The act of May 6, 1869 (8 Sayler, 1872), united the provisions for consolidating Ohio lines of road in the state, with the provision for consolidation of Ohio lines with lines of another state, in a single section ; and added the same proviso as to unbridged rivers, in a way to make it equally applicable to both. The earlier acts authorizing one railroad company to aid, lease, or purchase another were in accordance with the same policy, but in language less carefully guarded. THE ACT OF APRIL 15, 1873. Sec. 1 limits the right to aid to cases “where the road so to be aided does not form a competing line;” and the right to lease or purchase to cases where said “ lines are continuous or connected, and not competing ;” “ or any two or more railroad companies whose lines are so connected, and not competing, may enter into any arrangement for their common benefit,” etc. (4 Curwen, 2950-1.) [ 14 ] In the revision, the provisions relating to the consol¬ idation of roads owned by Ohio companies with each other, and the consolidation with roads owned by companies of another state, are separated again into two sections, leaving the piroviso relating to unbridged rivers, by a strict literal construction, applicable only to Ohio companies consoli¬ dated with companies of other states. I presume the change was inadvertent, and that the principle applies which was decided in State v. Comm’rs, ete ., 36 Ohio St. 327 : “ Where an act of the legislature, or several acts in pari materia , have undergone revision, the same construc¬ tion will prevail as before revision, unless the language of the new act plainly requires a change of construction, to conform to the manifest intent of the legislature.” II. The several provisions of the Revised Statutes of Ohio, relating to aiding, leasing, purchasing, or consolidating railway corporations; or to contracts between companies not to compete with each other, are all directed to the same mischief, are in pari materia , and should be construed as consistent with each other. III. Section 3300 of the Revised Statutes, based upon a fundamental principle of the law of cor¬ porations, that “ the powers of a corporation organ¬ ized under a legislative charter are only such as the statute confers, and the enumeration of them implies the exclusion of others,” Thomas v. Bail- road Co ., 11 Otto, 71, gives authority to aid, lease, or purchase, only when not competing; but as there are [ 15 ] several other ways of violating the policy of the law, the section closes with a sweeping clause which covers the entire policy: “Any two or more compa¬ nies whose lines are so connected and not competing , may enter into any arrangement for their common bene¬ fit consistent with and calculated to promote the objects for which they were created.” Nothing is permitted which unites competing roads under con¬ trol of the same interest. IV. Sections 3368, 3369, 3379, 3380 are specific as to such of the transactions covered by the general clause at the close of Section 3300, as are most likely to be resorted to in evasions of the general policy; but these sections do not change or infringe upon the policy, nor do they attempt to enumerate every thing to which it applies; such as pooling earnings and other devices. The policy is a broad one, and probably no railroad company has legal power to infringe it by any device whatever. V. The sections allowing consolidation limit it to instances where the roads are so constructed or de¬ signed “as to admit the passage of burden or pas¬ senger cars over any two or more of such roads con¬ tinuously /” that is to say, over all the lines to be consolidated, “ without break or interruption,” or to lines “ when the several roads so united will form a con¬ tinuous line for the passage of cars.” The two forms of expression mean the same thing and explain each [ 16 ] other. JSTo matter how many roads there may be, they must form a continuous line over which cars may pass from one end to the other without break or interruption. The phrase in Sec. 3379, “when the lines of any rail¬ road companies in this state, or any portion of such lines have been or are being so constructed,” refers to the time when the consolidation takes place. It may take place before either line is completed. But in addition to part or complete construction, the situation and plan must be so as to “ admit the passage df burden or passenger cars over any two or more of such roads continuously, without break or interruption.” In Sec. 3380, the consolidation is permitted “ when the several roads so united will form a con¬ tinuous line for the passage of cars.” The proviso concerning unbridged rivers indicates that the passage of cars was intended to be onwards in the same general direction, as implied in the formation of a continu¬ ous line. I apprehend that the continuity of line, when consolidated, was to be the same iii all cases. The con¬ tinuity of line was more fully, but I conceive not differ¬ ently, described in the act of March 19, 1869: “form part of a continuous line of road from a point in one of the states of the United States into this state or through this state to a point in another state.” 3 Sayler, 1760, 1761. The provision is substantially the same as that in the constitutions of Michigan and Illinois, forbidding consoli¬ dation with “ any other railroad corporation owning a par¬ allel or competing line.” The constitutions of Pennsyl¬ vania and Missouri extend the prohibition to as great breadth as the prohibitions in sections 3368, 3369, 3300, 3379, 3380 of our Kevised Statutes. The same appears to be [ 17 ] true of the Wisconsin statute before quoted : “ When by such consolidation a continuous line of roads is secured, running in the whole or in the main in the same general direc¬ tion , and not lawful when by so doing it will deprive the public of the benefit of competition between said roads.” In the act of West Virginia, before quoted, the con¬ solidation of parallel or competing lines is forbidden gen¬ erally, but permitted to “ any corporation owning or oper¬ ating any connecting line of railroad wholly or partly within this state, in order to make a continuous line of rail-, road” etc. Parallel or competing lines are contrasted with “ continuous ” lines. In the act of Iowa, before quoted, it is made unlawful for any railroad company to “ make any contract or enter into any stipulation with any other railway company running in the same general direction ” etc. The prohibition in the Hew Hampshire act refers to “ rival” lines. They all aim at the same mischief, and the different terms used express, more or less circumstantially, the same policy. The phrase “ continuous line v is much used. I appre¬ hend that it does not suggest, either to the popular mind or to any class of persons, learned or ignorant, the idea of any two or three sides of a triangle or of a square ; or of a line turning back upon its own general course, so as to dupli¬ cate the means of communication between the same termini. Webster’s Unabridged Dictionary says: “Continuous: 1. Without break, cessation, or inter¬ ruption ; constantly prolonged ; protracted; extended; as a continuous line of railroad; a continuous current of electricity; continuous depth. 2. Hot deviating or vary¬ ing from uniformity; not interrupted. Syn. : Continuous, continual. Continuous is the stronger word, and denotes that the continuity or union ' of parts is absolute and uninterrupted; as a continuous sheet of ice; a continuous flow of argument. Continual, [ 18 ] in most cases, marks a close and unbroken succession of things, rather than absolute continuity. Thus we speak of' continual showers, implying a repetition, with occa- sional interruptions ; we speak of a person as liable to continual calls, or as subject to continual applications for aid, etc. To say it rained continually during the day would not of necessity imply that there was no intermis¬ sion whatever; to express that, we should be apt to use the word continuously . . . . Continuously , adv. In a continuous manner, without interruption. Worcester Unabridged. Continuous : 1. Joined together closely, or without chasm or interruption ; con¬ nected, continued. 2. Without deviation from uniformity; opposed to interrupted. Syn. : Continual is that which is constantly renewed and recurring, with perhaps frequent stops or interrup¬ tions ; continuous or continued , that which is unintermitted or uninterrupted. Section 3300 allows “ any company” to aid another in the construction of its road, for the purpose of forming a connection of the roads of the companies when the road of the company so aided “ does not form a competing line” or to lease or purchase, “ if the lines of such company are continuous , or connected and not competing ;” and any two or more companies, “ whose lines are so connected and not com¬ peting ’, may enter into any arrangement for their common % benefit consistent with and calculated to promote the ob¬ jects for which they were created.” This propounds a comprehensive policy, which is car¬ ried out and not contradicted by any of the other sections. I have endeavored to show that the other sections, con¬ strued by themselves, so far as they go, express the same policy. If, however, the construction of Secs. 3379, 3380 were more doubtful than I suppose it to be, they should be construed as in pari materia with Secs. 3368, 3369, 3300. No reason can he imagined why the benefits to the public of [ 19 ] competing lines should be so stringently secured and guarded by Secs. 8300, 3368, 3869, and not equally secured and guarded in Secs. 3379, 3380. Consider what other construction is possible. Unless you so construe Sec. 3379 as in effect to deny any meaning whatever to the phrase “ continuously , without break or in¬ terruption,” and to deny any meaning in Sec. 3380 to the phrase, “ # when the several roads so united will form a con¬ tinuous line for the passage of cars,” the right would be given to consolidate all railroads having the same gauge, which are connected in the ordinary way by side-tracks, turn-tables, or other devices. The proviso relating to unbridged rivers has been re¬ ferred to. I am not aware that any river in the state , as distinguished from a river on the border, say the Ohio river, crossed by a line of railway, is now or was, when any of the railway acts were passed, unbridged. I have al¬ luded to the proviso as furnishing an indication that the lines permitted to be consolidated were such as, when united, would make one continuous line, running in the same general direction. But this proviso shows the force of the clause relating to the passage of cars from one road to the other, “ without break or interruption” The break or interruption occasioned by an unbridged river was, in the opinion of the legisla¬ ture, a thing which would interrupt the intended continuity of lines, unless especially provided for. In the Yew York statute, before quoted, the consoli¬ dating roads are required to “ form a continuous line of railroad with each other, or by means of an intervening rail¬ road , bridge , or ferry.” 7 Statutes at Large, 529, 530. In the Pennsylvania statute, before quoted, the roads “ shall be connected, either directly or by means of inter¬ vening line.” Laws of 1870, p. 31, sec. 1. « [ 20 ] In the Nebraska act, before quoted, the railroads are required to be so situated with reference to each other u that the same be so connected ... by bridge, ferry, or otherwise, as to practically form a continuous line of railway.”' Statutes of Nebraska of 1881, p. 304-5. If the legislature intended to permit all companies to consolidate whose lines are of the same gauge, it would have been an easy thing to express the purpose. The re¬ quirements of their own business would have provided ample guaranty against delays from breaks and interrup¬ tions. YI. By Sec. 5381, the steps therein prescribed to bring about consolidation are declared to be “ condi¬ tions and restrictions,” and are thus placed on the same legal footing with the preliminary steps in forming other railroad corporations. VII. y The first step in every case is a joint agreement between the directors of every corporation with the directors of each and every other corporation in the contemplated consolidation, “prescribing the terms and conditions thereof.” Such an agreement must specify the lines of road, and the corporations to be in¬ cluded in it. Among other requisites, the agreement must u prescribe the number of directors and other officers” of the new company “and their places of residence .” [ 21 ] VIII. The agreement, so made, shall he submitted to the stockholders of each of the corporations, at a meeting thereof called separately for the purpose of taking the same into consideration, due notice of the meeting and object of it having been given as speci¬ fied in the statute. A vote by ballot shall be taken for the adoption or rejection of the agreement, each share of stock on which has been paid all the install¬ ments called for bv the boards of directors, entitling* the holder of it to one vote. IX. If two-thirds of all the votes cast at each separate meeting be for the adoption of the agreement, that fact shall be certified thereon by the secretary of each of the corporations, and the agreement so adopted or a certified copy thereof, shall be filed in the office of the Secretary of State. X. Xot until the agreement is so made and per¬ fected, and the same or a copy thereof filed with the Secretary of State, shall the several corporations par¬ ties thereto, be deemed or taken to be one corporation, etc., etc. It is incumbent on thq defendants to maintain two propositions; failing in either of which, the case must be decided against them, viz : First. They must show that the companies and the lines of road are such as can lawfully be consolidated; and, [ 22 ] Second, that the proceedings taken have been regular, and such as the law requires for that purpose. First. The agreement on which the pretext of consoli¬ dation is based does not answer either branch of the in¬ quiry. The agreement recites that the Cleveland, Columbus, Cincinnati, and Indianapolis Railway Company, party of the first part, owns and operates aline of railway extending from Cleveland to Dayton, and several other lines of railway and branches. That the Cincinnati, Hamilton and Dayton Railroad Company, party of the second part, owns and operates a line of railway extending from the city of Dayton to the city of Cincinnati, and several branches and other lines. No other or further description is given of the lines and branches owned by either company. It further recites that the lines of the said parties are connected at the city of Dayton, not saying which of the lines, or whether all of them, or how many; and that they admit of the passage of trains of cars from and over each others railway (which of them or whether alj of them, not stated), and thus form a continuous line from Cleveland to Cincinnati. Then it recites that the “ said companies do hereby agree, and each for itself does agree, that the said two companies, and they are hereby merged and consolidated into and form one corporation.” How much is included in the consolidation? Each company had recited its ownership of a line of railway, and several other lines and branches. As consolidation consists in a consolidation of the stock, and as the two companies allege that they own all the roads and branches, the consolidation purports in the agreement [ 23 ] to consolidate all the stock which represents all the roads and branches. / By article fourth , it .declares that the capital stock of the new company shall be $20,000,000 ; and provides that $18,500,000 of the amount shall be exchanged, share for share, for the stock “ of the companies consolidated,” and the stock “ of either of the companies ” forming or merged, into “either of said corporations that is to say, forming or merged into either of the contracting companies. That such stock, both of the contracting companies and of the companies “forming or merged into ” either of them, shall be deemed stock in the contracting companies, entitling “ the holders thereof to vote and receive dividends accord¬ ing to their par value.” When to be deemed? Ho future time is fixed. The time for this provision to take effect is when the contract is so executed as to bind the contracting parties. By whom deemed? By the parties to the contract. They were to be deemed suchf until the consolidated company shall be ready to issue new shares therefor, and shqJl have given thirty days’ notice,” etc. When were new shares to be issued? The contract answers—“forth¬ with, after such consolidation shall be perfected.” When the share-holders of the companies other than the contract¬ ing companies shall have received the new stock, they will no longer be taken and deemed share-holders, but will in fact be such. Between the making of the contract and the readiness to issue new stock they were not in fact or law share-holders in the contracting companies, but deemed such, and allowed to vote. If the share-holders, so “ deemed,” had offered to vote at the meetings of stockholders, called to consider the agreement as' made by the directors of the two con¬ tracting companies, how could their votes have been re- [ 24 ] fused ? Perhaps it might have been said that the contract did not go into effect until approved by stockholders of the two contracting companies, and.was certified and filed with the Secretary of State. But assuredly their interests were as much involved in the vote at those meetings as they ever will be. The objection, however, if any was made, would not hold to their voting at the meeting held in Cleveland for the election of directors, or to their being elected to office. The agreement provides for them to vote before the new stock is issued. The thing here important, however, is the provision for an indefinite number of nameless and shadowy corpora¬ tions, with an indefinite amount of stock, to be treated as the stock of the contracting parties, and to be consolidated with the rest. If the nameless corporations had in fact been merged into or consolidated with the contracting companies there would have been no such stock to exchange. In article fifth of the agreement the same proceeding of an exchange of stock between the new company and an indefinite number of unnamed companies is carried for¬ ward. “ Every stockholder in each of the said compa¬ nies, or in either of the companies forming said corpora¬ tion hereby consolidated,” etc. By Article Seventh the agreement provides that : u Upon the making and perfecting of the agreement and ratification thereof by two-thirds of all the votes of all the stockholders of the respective companies parties hereto, and upon the filing of the same, or a copy thereof in the manner prescribed by law, the parties hereto shall be deemed and taken to be one corporation by t'he name pro¬ vided in this agreement, and shall possess within the several states into and through which its railway or any part thereof, or any of its branches, or any one or any part [ 25 ] thereof may run, all the rights, privileges, exemptions, and franchises of each of the companies so consolidated.” “And upon the consummation of said act of consoli¬ dation, all and singular, the rights, privileges, exemptions, and franchises of each of the said companies parties hereto, and of each and every of the companies merged in or consoli¬ dated with them or either one of them , and all the property, real, personal, and mixed; and all debts due on whatever account to either of said companies, as well as all stocks, subscriptions, and other things in action belonging to either of said companies.” It gives a further enumera¬ tion, including “all claims, demands, property, rights of every kind : leases , leasehold, interests , franchises , bonds, stocks,” etc.,etc., “belonging to either of said companies.” . . . “ in whatever state or states soever the same may be situated, or wherever existing,” etc. So far as the agreement discloses we are left in the dark what companies or lines of road were intended to he consolidated, but not left ignorant that the transaction was intended to cover unnamed companies and to effect a con¬ solidation of them all, “without further act or deed.” The answer gives more specifications. It discloses the existence of seven corporations, whose lines of road, in all or in part, the two contracting companies proposed to con¬ solidate. One of the seven companies, viz., the Cincinnati, Sandusky and Cleveland Company was propably not in¬ tended to be included in the consolidation, although that part of its line between Dayton and Springfield is indis¬ pensable to the defendants’ theory of their own case. Part of the information obtained from the answer is, the fact that not one of the seven corporations covered by the agreement had ever been merged in or consolidated with the two companies, or had ever formed the whole or part of either of them, before the agreement. The corporations named or implied in the answer are:— 1. The Cincinnati, Hamilton and Dayton Railroad [ 26 ] Company, owning in fee simple and operating a line of railroad in the State of Ohio, extending from Cincinnati to Dayton. 2. The Dayton and Michigan Railroad Company, whose line of railroad extends from Dayton via Sidney to Toledo, all in the State of Ohio; in which line of road the Cincinnati, Hamilton and Dayton Railroad Company is alleged to have had an estate of perpetual leasehold under and by virtue of which it owned and operated the line. 3. The Cincinnati, Richmond and Chicago Railroad Company, representing a line of railroad extending from the city of Hamilton, in Ohio, to the junction about two miles from Richmond, Indiana, with rights of way and of joint use over another railroad to said Richmond. It is alleged that the Cincinnati, Hamilton and Dayton Railroad Company had an estate of perpetual leasehold in this line, and under and by virtue of it owned $nd operated the line. 4. The Cincinnati, Hamilton and Indianapolis Rail¬ road Company, representing a line of railroad, part of which is in Ohio and part in Indiana; extending from the city of Hamilton, in Butler County, Ohio, via Connersville and Rushville, in Indiana, to Indianapolis, in said state. The answer does not allege that the Cincinnati, Hamilton and Dayton Company either owned this line of road, or had leased it, but only that said company operated it. 5. The Cleveland, Columbus, Cincinnati and Indian¬ apolis Railway Company, a corporation under the laws of Ohio and Indiana, which owned in fee simple and operated lines of railway extending from Cleveland via Gabon and Delaware to Columbus, all in Ohio; and from Gallon, Ohio, via Sidney, Ohio, and Union City on the boundary line between Ohio and Indiana, to Indianapolis, in said state; and from said Delaware to Springfield, Ohio. 6. The Cincinnati, Sandusky and Cleveland Railroad I 27 ] Company, which constructed and had owned a line of rail¬ road in Ohio, extending from Sandusky via Springfield to Dayton, and also from Sandusky via Springfield to Colum¬ bus. It is alleged that the Cleveland, Columbus, Cincin¬ nati and Indianapolis Company had an estate of perpetual leasehold, by virtue of which it owned and operated that part of the line between Springfield and Dayton. 7. The Cincinnati and Springfield Railway Company in Ohio, whose line was constructed from Cincinnati to \ Dayton, and was extended to Springfield by a contract for that part of the line between Dayton and Spring- field, of the Cincinnati, Sandusky and Cleveland Rail¬ road Company, the whole of said line having been trans¬ ferred to said Cleveland, Columbus, Cincinnati and Indian¬ apolis Company, under and by virtue of which transfers the Cleveland, Columbus, Cincinnati and Indianapolis Com¬ pany claim to have owned and operated the whole line. OWNERSHIP OF CONTRACTS. One of the roads included in the congeries of lines to be covered by the consolidation is the Cincinnati, Hamilton and Indianapolis railroad, concerning which not even a lease or any form of ownership is stated. The only power over that road held by the Cincinnati, Hamilton and Dayton Company consists in the fact that it holds a majority of the stock. The road, or part of a road, constructed by the Cincin¬ nati, Sandusky and Cleveland Company, and contracted to the Cincinnati and Springfield Company, by perpetual con¬ tract, is a road in which, on the theory of defendants them¬ selves, ownership must be established, in order to have the roads of the companies seeking consolidation connect, so as to admit of consolidation under the statute. [ 23 ] The contract as to this piece of road is exhibited by copy with the replication. The word lease is not an adequate description of it. It is a joint contract for a mutual exchange of business and business influence; for arranging rates of fare and of time¬ tables and for working together. It bound both parties to discriminate in each other’s favor, and to divide between them the gross earnings of the leased road, in the propor¬ tion of 35 per cent to the lessor and 65 per cent to the lessee. The Cincinnati and Springfield Company bound itself to “ use said railroad in connection with a railroad about to be built by itself between the city of Dayton and, the city of Cin¬ cinnati, so as to form a trunk road from, the city of Cincinnati , by the way of the city of Springfield , to Cleveland\ Sandusky, and Columbus .” Cinder this clause, an attempted consolidation with the Cincinnati, Hamilton and Dayton road is a violation of the covenants of the Cincinnati and Springfield Company, and entitles the Sandusky and Cleveland Company to forfeit the contract, “and to have again, repossess, and enjoy the same as of its or their former estate.” The parties to the contract distinctly contemplated that the Cincinnati and Springfield Company should not own the road. It was to continue to be owned as before. It was contemplated that the Cincirwiati, Sandusky and Cleveland Company would incur a continuing liability as owner on claims for damages and losses incurred in running 1 the road, against which the Cincinnati and Springfield Company bound itself to indemnify and save the owners harmless. The Cincinnati, Sandusky and Cleveland Company, pursuing the same idea of continued ownership, covenanted to renew the contract. It covenanted : [ 29 ] “And said party of the first part further covenants and agrees that, upon the request of said second party, its successors or assigns, it will proceed and appropriate, un¬ der the laws of the State of Ohio, such real estate and rights and interests as may be necessary or required for the maintenance and operating said railroad, said second party, its successors or assigns, paying all costs and damages therefor, and for which said first party may be¬ come liable/ 7 It will not, I apprehend, be contended that a railroad corporation could exercise the right of eminent domain for a road owned by another company, or that the parties to the contract supposed it could. The contract of the Dayton and Michigan Company, party of the first part, with the Cincinnati, Hamilton and Dayton Company, party of the second part, made in 1863, and the modification of it, made in 1870, provided for keep¬ ing up and maintaining the organization of the party of the first part. The party of the second part was bound to maintain and operate the road, “ in connection with its own line of railroad , as a through line .” Among other consider¬ ations, the party of the first part gave the party of the second part a bonus in the stock of the party of the first part to the amount of $1,000,000, and in its bonds and cou¬ pons to the amount of $600,000, to become “ the sole and absolute property of the second party.’ 7 The Cincinnati, Hamilton and Dayton Company became the guarantor of the bonds of the Dayton and Michigan Company, and stip¬ ulated, after paying certain expenses and liabilities, “ to pay over the balance of such earnings to said Dayton and Michigan Railroad Company, to be by said company applied to the payment of dividends , or otherwise , as may be ordered by the board, of directors ” The agreement of 1870 made some modifications, and, among pthers, the stipulation of the Cincinnati, Hamilton [ 30 ] and Dayton Company to pay over all the excess of earnings, Avas commuted for a guaranty of three and a half per cent dividends on the unpreferred stock of the Dayton and Michigan Company. « In this agreement the Dayton and Michigan Company undertook to “protect the title of the first party to the de¬ mised property, during the continuance of the lease, against all incumbrances thereon, and all claims whatever.” This arrangement was so much more than a lease, that the word lease does not describe it. The contract of the Cincinnati, Richmond and Chi¬ cago Railroad Company with the Cincinnati, Hamilton and Dayton Company does not disclose a bonus to the Cincin¬ nati, Hamilton and Dayton Company, but, with less detail, is framed on the same general plan. It provides for the right to keep up and maintain the corporate existence of the Cincinnati, Richmond and Chicago Company; for main¬ taining and operating the road as that company “is or may by law be bound to do to develop its business; to guaranty certain liabilities and expenses, and to “ account for and pay over ” to the Cincinnati, Richmond and Chicago Com-, pany “ any surplus of said earnings and profits that may then remain annually The right of way, under the decisions in Hatch v. Cin¬ cinnati and Indianapolis R. R. Co., 18 Ohio St. 92, and in the Junction Railroad Co. v. Ruggles , 7 Ohio St. 1, is an easement in the land, and, therefore, an incorporeal interest. This idea is not incompatible with the doctrine of Coe v. C., P. § I. R . R . Co., 10 Ohio St. 372 ; for in the latter case the rail¬ road and appurtenances had been affixed to the ground over which the right of way existed. Situated as that road was, and with reference to conflicting claims and liens of creditors, the road and fixtures were treated as real es- 4 [ 31 ] tate; locomotives, cars, and materials, etc., as personal property. But the court said : “ We are not called upon, in this case, to decide what, in the event of a determination of the use for which inter¬ est in real estate was obtained, would be the respective rights of the owners of the real estate, and the creditors of the corporation, in those things affixed in the construction of the road, and which might be separated from the land, and would have value when so separated. We are not called upon to decide whether either such owners or the state could object to such a separation for the purpose of paying the just debts of the corporation. When those questions arise, it may be necessary to determine whether the rule as to fixtures between vendor and vendee , or land¬ lord and tenant , can be justly and equitably applied” The cost of the easement, compared with the cost of the superstructure, appurtenances, and apparatus, and the value of franchises which, in the aggregate, constitute the earning power and value of a railroad, leave little reason, in the nature of the case, for assimilating this kind of a railroad lease to a lease on real estate. It is a lease upon property represented by shares of stock which in law are personal property. The reasons which led to treating per¬ manent leases on real estate as real estate, instead of chattels, had their origin in dower rights, statutes of descent and dis¬ tribution, and judicial sales. Statutes of distribution in regard to railroad property do not reach further than shares of stock owned by individuals, and are easily dealt with. Dower rights in the property over which the easement is created are not practically important. Only judicial sales for debts owing by railroad corporations could assimilate railroad property to real estate; and in view of the usual methods of dealing.with such sales, the idea of real estate in connection with them, whether right or wrong, adds little, if any thing, to convenience or safety. t 32 ] But such contracts as those now under discussion, are never made with reference to real estate. At least, I do not remember to have seen one. In fact, when you look to the elements usually found in a permanent lease of real estate, these railroad contracts do not resemble them. If corporations could be partners, these so-called leases would more resemble articles of partnership. There are no fixed rents. They are agencies or bailments, and a constant accounting between the parties for current business is pro¬ vided for. It is not necessary to inquire whether or not' they can in any just sense be called leases. The terms of the contracts make both parties share all the benefits of the use of the roads, and bind both parties to contribute to their success. The terms also bind the owners to keep up the corporate existence of the compa¬ nies, and to exercise their corporate functions in connection with the use of the property. They empower the owner companies to resume posses¬ sion of the roads on failure of the other parties to perform conditions of a kind not usually connected with title to real estate. The situation is unlike that of the lessee of real es¬ tate. Ordinary real estate is only private property. No corporate franchise or right of eminent domain is needed for its ownership or management. Public interest is not involved or public policy. A railroad corporation is created on* ideas of public policy, charged with public duties and not allowed to ab¬ dicate them. The lessor company which leases a railroad is liable for the negligence of the lessee. The York and Maryland L. R. Co. v. Ross Winans , 11 II. 30. Railway v. Barron , 5 Wall. 90. [ 33 ] The Chicago $ R. 1. Co. v. Whipple, 22 Ill. 105. O. § M. R. Co. v. Dunbar , 20 Ill. 385, 623. Chi. § St. Paul R. Co. v. McCarthy, 20 Ill. 385. Nelson v. The Vt., etc., 26 Vt. 717. McElroy v. Nashua, etc., 4 Cash. 400. Brice on Ultra Vires (2d ed.), 305 n. Railroad v. Balner, 57 Ind. 572. Railroad v. Mayes, 49 Geo. 355. Langley v. Railroad, 10 Gray, 103. In Railway Co. v. Barron, 17 Wall. 445, the Court says : “ It is the accepted doctrine of this country, that a railroad corporation can not escape the performance of any duty or obligation imposed by its charter or the gen¬ eral laws of the state, by a voluntary surrender of its road into the hands of lessees.” P. 450. Cites. Red- field on .Railways (5th ed.), chap. 22, § 1 , p. 616. If the Cleveland, Columbus, Cincinnati and Indian¬ apolis Company owns the road between Springfield and Dayton, it is by virtue of the contract. The same princi¬ ple would make it owner of the Cincinnati and Springfield road; thus,its line of road would be a through line front the Ohio river to the lake. On the same principle, the Cincinnati, Hamilton and Dayton Company would own the Dayton and Michigan road, and own a through line from the river to the lake. In this view, each of the contracting companies would own a through line, and the two lines would be parallel and competing lines. These lines could not he consolidated, not only because they are parallel and competing, but because they were not so constructed or designed as to admit the passage of cars over both of them continuously, or so that, when united, [ « ] the several roads form a continuous line for the passage of cars without break or interruption. To avoid this difficulty, each of the companies con¬ tracting for consolidation seeks to separate, in idea, the line it claims to own. into two parts, and to consolidate the north part of one with the south part of the other. In this they f assume that parts and fragments of .lines owned may he consolidated without the other parts. I apprehend that such is not the law. Companies may be consolidated when parts only of their respective lines of road are constructed, but I find nothing to authorize companies to consolidate . any part of a line another part of which is not included in the consolidation. The things consolidated are the companies —two corpo¬ rations become one. What they both owned before the consolidation is owned afterward by the new corporation. The defendants are as much in need of this last feature of the law as they are of its opposite, because this feature is relied upon to carry the remaining parts of the two lines into the new company, and thus consolidate in one com¬ pany the ownership of the two competing lines. Again : if the companies contracting to consolidate own the lines, contracted to them, the Cincinnati, Hamil¬ ton and Dayton Company owns the Cincinnati, Richmond and Chicago road, which does not connect with the other lines in a way required by the statute in order to permit consolidation. Neither can the Cincinnati, Hamilton and Indianapolis Company be consolidated with the other companies, because its line of road does not connect with them in the way re¬ quired by law, nor is it owned or leased by either of them. The lines described in the answer to the quo warranto , taken together as a congeries or system, do not admit the passage of cars over all of them continuously, nor do they, united, form a continuous line. If the plan of consolida¬ tion includes them all, none of the companies can he con¬ solidated. But if the two companies contracting to consolidate own all the lines, the consolidation of the contracting cor¬ porations will consolidate them all. Admitting for argu¬ ment that the ownership of the contracts or leases is equivalent to ownership of the leased lines, consolidation is inadmissible as to any of them. On the other hand, if the contracting companies are not held to own the roads which they work under contract, the Cincinnati and Springfield Company did not own the road between Dayton and Springfield by virtue of its con¬ tract with the Cincinnati, Sandusky and Cleveland Com¬ pany, nor did it assign to Cleveland, Columbus, Cincinnati and Indianapolis Company more than it had by its con¬ tract. In this view the companies contracting for consoli¬ dation were not so constructed or planned that the two roads united formed a continuous line for the passage of cars. Second. Whether or not the railroads referred to in the contract for consolidation and the companies which owned them were such as could be lawfully consolidated, the contract, certificate, and other proceedings relating thereto were not such as in law were required to make a valid consolidation. Section 3381, Revised Statutes , declares that “ The consoli¬ dation shall he made under the conditions and restrictions ” stated. Section 3382 provides that “ When the agreement is made and perfected, as provided in the preceding section, and the same or a copy thereof is filed, the several com¬ panies parties thereto, shall be deemed and taken to be one company,” etc. [ 36 ] The steps pointed out by the statute are conditions precedent. The making of the agreement and certificate and filing of it, appear to hold the same or similar relation to a con¬ solidated company, which the ordinary certificate, filed with the Secretary of State, holds to ordinary railway cor¬ porations. In The Atlantic and Ohio Railroad, Company v. Sullivan t, 5 Ohio St. 276, it was said that the certificate and public record of the organization must be “ in strict compliance with the requirements of law.” In that case the proposed line of the contemplated railroad company was described with alternatives, and the termini were not definitely stated. The certificate was held bad on that account, and it was held that no corporation had been created by it. In Callender v. Painesville and H. Railroad Company , 11 Ohio. St. 517, the line of the contemplated road was considered not more exactly defined than in the case first cited, but the court deemed the lines in both cases as well defined as had been usual in this state, which it held to be all that the law required. The decision, however, was based on an estoppel. It did not doubt that the certificate must conform strictly to the law. See also, State v. C. 0. J\l. R . Association , 29 Ohio St. 399. Spinning v. H. B. $ S. Association , 26 Ohio St. 483. Warner v. Callender , 20 Ohio St. 190. Raccoon River Navigation Co. v. Eagle , 29 Ohio St. 238. State v. Lee, 21 Ohio St. 662. I apprehend that the certificate must show, when taken in connection with its being filed in the proper otfice, the prima facie existence of the state of affairs which consti¬ tutes a corporation. * . *■• * , v “ To give the corporation organic life, the mode [ 37 ] pointed out in the charter must ordinarily be strictly pur¬ sued. Conditions precedent must be fairly complied with.” 1 Redf. on Rwys. 64, sec. 18, and note. The right to consolidate companies is a franchise, con¬ ditioned upon and inseparable from the performance of the statutory requirements, in the same sense as the right, when . granted to a railroad company, to cross a common high¬ way. Little Miami R. Co. v. Comm’rs , 31 Ohio St, 338. State v. Railroad Co., 36 Ohio St. 434. M., C. $ L. M. Co. v. Brown, 26 Ohio St. 224. M., C. § L. M. Co. v. Stout, 26 Ohio St. 242. The contract and certificate are invalid for the follow¬ ing reasons, viz.: For vagueness: in that it proposes to include in the consolidation an indefinite number of lines and branches of railway without describing them, or saying in what direc¬ tions they run, or in what states they are located, or what places they connect; and in that it proposes to include in the consolidation an indefinite number of railway corpora¬ tions, without giving their names, or their places of busi¬ ness, or the states under whose law 7 they bold their fran¬ chises. Also invalid by reason of providing for the assignment of an indefinite number of railway lines, and an indefinite amount and variety of assets belonging to railroad corpo¬ rations, not joining in the agreement, nor, so far as ap¬ pears, consenting or in any way consulted. And in that it did not make known whether or not the lines of railway represented by the unnamed corporations were so situated as that they could by law be consolidated with each other, or with the lines of .the contracting com¬ panies. [ 3S ] And in that it undertook to incorporate a new railway company, whose intended lines of road were left to conject¬ ure, without mention even of the alternative routes, held insufficient in former cases. The contract is also invalid because it fails to comply with the requirement of the statute, to “ prescribe the num¬ ber of the directors and other officers” of the new corpora¬ tion “ and their places of residence.” It does neither. The requirement of the statute must be accepted as based on adequate reasons of policy and convenience. It may have relation to the same policy as that provided for in Sec. 260 of the Revised Statutes ; or to the just representation of local interests, or to both. Whatever the reasons for the requirement, the agreement does not conform to it. Article first declares that * “ The directors of the said new corporation shall be thir¬ teen in number; and the officers thereof shall consist of a president, one or more vice-presidents, a treasurer, a sec¬ retary, and such other officers as may be deemed necessary by the board of directors . All of said officers shall be resi¬ dents of the State of Ohio.” This does not prescribe the number of officers, but leaves the directors to do it. Since the number of officers is not prescribed, it leaves the aggregate number of “ direc¬ tors and other officers ” unfixed. It also excludes the di¬ rectors from the list of officers, and avoids prescribing where the directors shall reside. With reference to the officers, as distinguished from directors, it seeks to elude the re¬ quirement by saying in general terms they shall be resi¬ dents of the State of Ohio. It does not limit the directors to the State of Ohio, nor to the United States. So far as the agreement is concerned, the directors may all reside in London or Berlin an tioned in the first four sections of this chapter, against a turnpike road company, may be brought in any county in which any part of the road lies.” s The original section 49 of the code placed railroad com¬ panies and lines of mail or other coaches on the same foot¬ ing. The actions provided for were actions for an injury to person or property upon the road or line, or upon a lia¬ bility as a carrier. Section 50 made no such limitation as^to the kind of actions which might be brought against a turnpike com¬ pany in any county in which any part of the road lies. ; The Act of May 1, 1854, 52 0. L. 102, reconstructed the section relating to lines of coaches and railroads, and limited actions to be brought against coach lines; but it transposed the sentences, and placed the clause relating to railroads after the limitation, in such manner that the lim¬ itation did not apply. It guarded against a possible impli¬ cation that the limitation was intended to apply by this language: “ and any action against a railroad company may be brought in any county through or into which such road or line, owned or leased by said owner or railroad com¬ pany, passes.” There was no apparent motive to transpose the lan¬ guage of the section, except to change its meaning in C 51 ] the particular referred to. If the limitation as to kind of actions had been intended to be kept up, no such lan- £mao;e would have been used. In the original section, rail- roads had been classed with stage coaches, which do not require any franchise in their operations. Bnt a turnpike company, which does depend upon a franchise, might be sued in any county in which any part of the road lies. This provision relating to turnpike companies has not been changed. The change in section 49, I apprehend, places turnpike and railroad companies on the same footing as to the coun¬ ties in which they may be sued. Hor is it easy to perceive any reason why they should be treated differently in that respect. Sections 5027 and 5028 of the Revised Statutes pre¬ serve the law as it stood before, omitting only the passage which had been added to section 49 of the original code by the Act of April 3,1866, before quoted. The phrase omitted is the one underscored in the foregoing statement concern¬ ing the Act of 1866, viz.: “ owned or leased by said owner • i or railroad company.” The Act of March 21, 1850, S. $ C. 320, sec. 2, provides that suit may be brought before a justice of the peace against any railroad company, in any township into or through which the road of such company may be located. And, if the principal business office of the company is not kept in such township, it shall be the duty of the justice of the peace to issue a writ of summons against said company, directed to the sheriff of the county where the principal business office of the company is kept, with an indorsement on the back of the writ of the name of the post-office to * which said writ shall be returned; and the plaintiff may .transmit the same, post-paid, by mail. The second section provides for the service and return of the writ. I IRRARV [ 52 ] The Act of 31 arch 31, 1866, 63 0. L. 63, 64, amended the act last above mentioned, so that section 2 of the amended act reads: “Sec. 2. Suit may be brought before a justice of the peace against any railroad company, in any township into or through which the road owned or leased by said com¬ pany may be located. And, if the principal business of¬ fice of the company is not kept in the township in which any such suit may be brought, it shall be the duty of the justice of the peace to issue a writ of summons against said company, directed to any constable in the township in which said suit may be brought.” Section 3 of the same act requires the constable to serve the summons forthwith on the president of the company, if a resident of the county, or, if the president is not a resi¬ dent of or have a place of business within the county, the service to be made “personally upon the person having charge of a ticket office, or upon the person having charge of a freight depot ., owned by or under the control of such company , in the county where the suit is brought.” Section 6478 of the Revised Statutes is the foregoing act enlarged, authorizing the action to be brought in any town¬ ship, “ into or through which the road ow T ned or leased by said company may be located, whether such company be foreign or created under the laws of this state, and whether the charter thereof prescribes the place where the suit must be brought against it, or the manner or place of service of process thereon.” The method of service is substantially, and I believe exactly, as it was before. Section 5044 of the Revised Statutes provides for ser¬ vice of process on corporations : “and if such corporation be a railroad company, whether foreign or created under the laws of this state, and [ 53 ] whether the charter thereof prescribes the manner and place, or either, of service of process thereon, the summons may be served upon any regular ticket or freight agent thereof; or if there is no such agent, then upon an}^ con¬ ductor, in any county in this state in which such railroad is located, or through which it passes.” The act of March. 31, 1866, before quoted, authorizing suits against a railroad company in any township into or through which the road “ owned or leased by said company,” may be located, etc., must have been before the same com¬ mittee, and the same General Assembly, as the act of April 3, 1866, passed three days afterwards, and hereinbefore quoted. It was probably the same hand which penned the phrase above italicized, in the act relating to suits before a justice of the peace, which wrote the same clause which was at that time added to section 49 of the original code; that is to say, the act of April 3, 1866. The policy of both acts was intended to he the same. Neither the act authorizing suits against railroad cor¬ porations before justices of the peace, as originally passed, or as matured in the revision, limited the actions which may be so brought to any particular class. Nor can sec¬ tion 5027 of the Kevised Statutes be made to limit the actions which may be brought under its provisions unless by implying language not there, and which the history of the section shows was not intended to be there. I am not able to conceive anv sound reason for such a limitation if it had been made. A railway, wherever it passes, affects the property, the rights and the comfort of the public. In places where it has no business office, and where its business is transacted by small officials and agents, there is need, for those who have to do or to bear with it, of the means of speedy and effectual justice. [ 54 ] A railroad company lives as truly and as much in any county into which its road passes as in any other. Its cor¬ porate franchises and powers are there, and its legal respon¬ sibility, not merely in theory hut in fact, should he there- Such corporations are allowed to choose the places for their principal business offices, and for their subordinate offices, and to place in them such officers and agents as they choose. The laws of Ohio allow persons, who have or think they have need of redress, to seek it at any place on the line of road convenient to themselves. Railroad companies are worked in connection with telegraphs, and are kept advised of what happens on any part of their lines. Their officers and agents abound and travel free. But suitors under the law as claimed by plain¬ tiffs in error, would only be able to seek redress on condi¬ tion of first paying tribute to their adversary. If parties seeking redress against the actions of great railroad corporations are forbidden bylaw to seek it in any jurisdiction other than the one where these corporations are likely to have their multitudinous means of influence best arranged and matured, it will be an interesting feature in our jurisprudence. It may be argued that under the construction of section 5027, which I am endeavoring to maintain, actions against railroad companies would not be limited to actions other than those mentioned in the first four sections of the chapter, as actions against turnpike companies are in the next section. Possibly there maybe a question of in¬ advertence or of construction. But I apprehend that it was unnecessary to express that exception in either section. The exceptions exist in the nature of the case, and being specifically provided for in the first four sections, the other [ 55 ] sections may be construed as in pari materia , and not as forbidding those exceptions. It maybe said that in section 5027, the language is, “■and an action against a railroad company” is substituted for the language “and any action,” as it stood in the act of May 1,1854, and of April 3,1866. But unless it can be made to appear that an has a different meaning from any , as there used, the fact of leaving out the letter y is not significant. The section as it stood in the original code remained but a short time. I have before called attention to the transposition of the clauses in it, so that by position alone the clause relating to railroads would not be affected by the limitation as it had been. It was a natural thing, when contrasting the intended meaning with the limitation to particular classes of actions, as it stood before, to say “ and any action against a railroad company.” It stood in that way for about twenty-four years. The revisers chose the word “an” in this case as in many others, to express the same meaning. If they looked at Webster’s Unabridged Dictionary, they found what they must have known before, that one of the definitions of the word “ an” is “ any.” By section 5044 a summons against a corporation may be served upon the president, mayor, chairman, or president of the board of directors, or trustees, or other chief officer ; or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent, etc., and if a railroad company, upon any regular ticket or freight agent thereof; or if there is no such agent, then * upon any conductor, in any county in this state in which such railroad is located, or through which it passes. By section 5038, when the action is rightly brought in any county, according to the provisions of chapter five of division two (the chapter from which quotations have [ 56 ] been made to show where an action may be brought), then a summons may be issued to any other county against one or more of the defendants, etc. In this case the record shows that the summons against defendant, Cleveland, Columbus, Cincinnati and Indianapo¬ lis Company, was served in Franklin county on October 19, 1881, by delivering personally to C. F. Evans, the regular freight agent of said Cleveland, Columbus, Cincinnati and Indianapolis Company, a certified copy of the writ; neither the president, vice-president, nor the other chief officers of said corporation being found in the county; and by also delivering a certified copy to J. W. Collier, an agent of said company. The action being rightly brought in said county as to defendant, Cleveland, Columbus, Cincinnati and Indianap¬ olis Company, a summons was issued against the other de¬ fendants to Cuyahoga county, and also against the Cleve¬ land, Columbus, Cincinnati and Indianapolis Company, and served on the 20th October on them all. The service as to these two corporations was made personally on the presi¬ dent of each, and also made personally on the individual defendants by copy delivered to each. There was, therefore, an action pending, unless some ground not yet considered may be held to have produced a contrary result. The only ground which I have heard suggested for contending that no action was pending is the one already considered, and another now to be considered. It is contended that the consolidation had taken place before process was served, and that the two railroad corpora¬ tions had ceased to exist, and had been merged in a new corporation, called The Ohio Railway Company. Unless the proceedings for consolidation were valid, the result claimed could not have happened. Whether [ 57 ] or not the proceedings for consolidation were valid is tlie main question in this whole controversy. But whether they were valid or not, I apprehend they had not reached a stage to extinguish the existence of the contracting companies, as holding and representing the title to the corporate assets and franchises, which they owned before the consolidation was initiated. By section 3382, “ when the agreement is made and perfected,” and the same or a copy has been filed with the Secretary of State, the several companies “ parties thereto,” shall he deemed and taken to he one company, possessing within this state all the rights, privileges, and franchises of a railroad company. If the proceedings had been rightly taken and perfected, I suppose the record in the office of the Secretary of State would be equivalent to the ordinary certificate acknowledged, certified, and filed by five corpo¬ rators. It would then be a corporation and have a capacity to take, but would have taken nothing except that corporate capacity. By section 3384, the “ rights, privileges, and franchises ” of each of the companies to the agreement , and all assets would pass only “ upon the election of the first board of directors,” which did not happen until after all the writs had been served. M. C. § L. M. B. B. Co. v. Brown efal. 9 26 Ohio St. 223. I shall, therefore, submit that the first error assigned is not shown to have been committed, but that there was an action pending in said Court of Common Pleas when said order was made, and when said receiver was ap¬ pointed. The petition in error does not complain of the tempo¬ rary restraining order allowed when the petition was filed, and which was served with the regular process, shown on [ 58 ] page 21 of the Record. Nothing is said against the valid¬ ity of the restraining order in case there was in law an ac¬ tion pending. All the errors assigned, after the first, relate to the or¬ der appointing a receiver, and to the injunction allowed at the same time. The assignment of error that the court had no juris¬ diction to make the order, which is No. 3 of the errors al¬ leged, and the errors alleged and numbered 6 and 7, that the order appointing the receiver and granting said injunc¬ tion is void, are probably intended to refer to the supposed absence of jurisdiction; or, what is the same thing in dif¬ ferent words, to the supposed fact that no action was pending. All the other assignments refer to the circumstances shown as cause for the order, and as being insufficient. The showing may, therefore, he treated all together. The showing was that the two corporations named had entered into an agreement to consolidate their companies contrary to law; that their lines of. road are not such as the law permits to be brought under the same management by consolidation; that the agreement had not been made and perfected in a manner to make a valid consolidation, if the roads and companies had been such as the law per¬ mits to he consolidated; that the defendant corporations had called a meeting to be held at Cleveland on the day next after the filing of the petition, to elect directors of the proposed new corporation, and to complete and consummate the unlawful consolidation; that individual defendant, Devereaux, was president of both corporations; defendant, Burke, vice-president of one of them; that defendant, Russell, was secretary of one of them ; that said defendants, Devereaux, Russell, Short, and Burke had been and were active in devising and carrying out the unlawful scheme. [ 59 J and were actively engaged to complete it by the election ot directors, etc. That the interests of plaintiffs as stockholders in said Cleveland, Columbus, Cincinnati and Indianapolis Com¬ pany would be greatly prejudiced and irreparably injured by reason of the furthering and completing said consolida¬ tion ; that it would confuse the earnings and expenses re¬ spectively of said defendant corporations, and be otherwise greatly to the damage of the plaintiffs. The petitioners on their own behalf, and on behalf of all the stockholders of the defendant, the Cleveland, Co¬ lumbus, Cincinnati and Indianapolis Company, who, etc., prayed a restraining order against said corporations, de¬ fendants, their directors, stockholders, servants, and agents, from doing any act toward the completion of said consoli¬ dation, and specifying with great particularity many acts to be prohibited. The petition was duly verified and supported by affi¬ davits, and a restraining order was allowed as prayed. It was further shown by undoubted affidavits that the restraining order had been served upon all [the defendants named in the actions; and cause was shown for adding other defendants. It was shown that nothwithstanding the restraining order the meeting by it forbidden to be held was held; and that the defendants restrained from taking part in it were nevertheless present and did take part in it. That Mr. Ferguson, one of the counsel for plaintiff's, was present at the meeting, and before action was taken on the subject for which the meeting was called, publicly pre¬ sented a copy of the petition and the restraining order, and stated its provisions to the assembled officers and stock¬ holders, and warned them that they could not proceed to elect directors for the contemplated Ohio Railway Com- [ 60 ] pany without violating the restraining order. Some of the defendantsfin the case and other stockholders took up a debate with Mr. Ferguson on the subject, which brought the whole subject of the restraining order and the charac¬ ter of it to the attention of all who attended the meeting. The meeting nevertheless proceeded with the election, and elected a board of directors, etc. The defendant companies, by disregarding the restrain¬ ing order, had taken the step which, if their proceedings had been according to law, would have completed the act of consolidation, and would, without further conveyance, have transferred all the franchises and assets of the defend¬ ant companies to the new company. It would have done more. Referring to my argument in the quo warranto case, without repeating it, the consoli¬ dation, perfected on the basis of the agreement, would have transferred all the assets and franchises of six railway com¬ panies to the new corporation. The persons so elected as directors of the new com¬ pany immediately proceeded to elect a president and other executive officers of said new company, and to confirm ap¬ pointments and agencies made by the president and ex¬ ecutive officers as elected and approved, and to take steps for obtaining the immediate possession of the assets of the old companies on behalf of the new company. Among other allegations in the supplemental petition was this: “That said pretended directors and officers of said pretended new corporation intend to, and unless stopped by the effective intervention of this court, will take con¬ trol and management of the property, franchises, and as¬ sets of every kind, of the two railroad companies defend¬ ants in this case, in the name of said pretended new corporation, and will abandon and cause to be dissolved the two railroad companies, defendants in this case.” [ 61 ] and this : “That unless said pretended directors and officers of the new company shall be prevented by the action of this court, they will treat the assets and earnings of both of said old companies as belonging to the pretended new company, and keep the accounts accordingly; and the assets, rights and franchises of the share-holders in the old companies will be intermingled and confused beyond redress.” The order complained of, among other things, recites : “Whereupon and upon consideration of the original and supplemental petitions and the affidavits of H. J. Booth and Julius J. Pomerine, and the returns of the sheriffs of Franklin and Cuyahoga counties, respectively, which were offered by plaintiffs in support of said motion, and upon hearing counsel for plaintiffs, the court doth adjudge and order,” etc. Among the facts so before the court, as part of the original petition, was a copy of the agreement for consoli¬ dation, on the face of it neither framed by directors nor approved by stockholders, nor certified, as required by law. Why, then, should not the court have made the order ? Was there a statement or allegation in the proceedings about which the court could entertain any doubt ? Has a material statement in the original or amended petitions or affidavits been at any time discredited? Was there, either in the character of plaintiffs or in the nature of the redress sought, any thing irresponsible or wanton, or which could be hurtful to defendants, or which could he aimed at any purpose other than the preservation of the property and franchises in which plaintiffs were interested ? The purpose of the defendants, openly declared and acted upon, was not at the time concealed and has not since been dis¬ avowed. Defendants contend that in no case can a receiver be [ 62 ] appointed without notice to the adverse party, or service of process, or both. If such is the law, it can be shown. The burden is on them. But if it be found that it can, in some cases, be done, the subject must, to that extent, he within the discretion of the court. In C. S. $ C. R. R. v. Sloan , 31 0. S. 1, it was con- / tended by counsel that the appointment of a receiver is matter of discretion. The court said: “As a general proposition this is true (p. 13), but only in a ease calling for the exercise of discretion.” I apprehend that the meaning of this is that the court must have jurisdiction, and that the subject must he so presented as to call for the action of the court, either to grant or refuse. To the same point see— Kerr on Receivers , p. 3. 2 Daniels' Chancery Practice , 1406. 2 Story's Hq., § 831. It is not denied that a case of urgency must be shown to call for the appointment of a receiver without notice to the adverse party. High on Receivers , sec. 113, says: “ To warrant a court in entertaining an application for a receiver without notice, it must be clearly shown that the delay which would result from giving notice would defeat the rights of the plaintiff, or result in great injury to him.” See also Kerr on Injunctions , p. 577. In Kernber v. Harding , 4 How. Pr. R. 178, the court stated what the chancery .practice required: “ By that practice, a receiver could not be appointed without notice, except under peculiar circumstances, de¬ manding immediate action tp be made, to appear by the papers upon which the application is made. And in such [63] cases the receiver was appointed for the protection of the property pendente life, and the order did not” (as in the case then under consideration) “assume to make a final disposition of the property without a hearing of the parties.” Jurisdiction to protect property during litigation does not require a conclusive showing of right, but only a fair prima facie case in support of the title asserted, and that there is a fair question to raise—that the probabilities are in favor of the applicant. Kerr on Injunctions , p. 197. The present case is very different from an effort to get possession of property for the plaintiffs, or take it away from a defendant who had title. Here there was a joint and common interest, placed under the management of trustees for the common benefit, who avowed their purpose to dissolve the corporations they were appointed to preserve. The court, in the first instance, restrained them from the proposed act. Neither the court nor plaintiffs proposed to disturb their possession. The object was to preserve the common property. But the defendants committed an of- 1 y ' fense which rarely happens, and which, exposed the prop¬ erty to extreme hazard. They refused obedience to the order of court. “ With whatever irregularities the proceedings may be affected, or however erroneously the court may have acted in granting the injunction in the first instance, it must be implicitly observed so long as it remains in exist¬ ence, and the fact that it has been obtained erroneously affords no justification or excuse for its violation before it has been properly dissolved.” High on Injunctions , sec. 848. “To render an injunction binding and operative upon a defendant, it is not necessary that he should have been 4 [ 64 ] officially apprised of its existence, or actually served with the writ. And where a defendant has heard the order of the court granting an injunction, or has in any manner received actual notice of its existence, he is effectively bound by its provisions as if actually served with pro¬ cess.” High on Injunctions , p. 14, sec. 20. The breach of an injunction is in the nature of a tort. High on Injunctions , section 877, p. 514. This breach of injunction was part of the case for a receiver; indeed, no receiver would have been called for without it. The defendants had made an equitable execu¬ tion necessary. If a notice had been required, upon whom and how could it have been served ? The affidavits offered showed that the injunction had been declared ineffective by the de¬ fendant companies, because not served on many of the stockholders. They insisted that notice was not enough. They had in defiance of the restraining order taken the final step which, in their opinion , disbanded the old companies , disposed, of all their assets , and brought into existence a new corporation. In addition to this they had disbanded, and as individuals had scattered to different cities, counties, and states. There was no more reason for notifying any one of them than for notifying all. They all disclaimed any offi¬ cial or representative capacity. The new company was, in the opinion of plaintiffs, a void thing. It had no authority or right to be. The property was the only thing that could be reached by notice or pro¬ cess. It was appropriate and necessary that it should be preserved until the rightful owner should be known. It has been said that Cleveland, Columbus, Cincinnati and Indianapolis Company was not a party interested ad¬ versely to the plaintiffs. If this saying is in any sense true, [ 65 ] I suppose its relevancy to this case must be as follows: Not being adversely interested, it should not have been made a party defendant. In this view it may be contended that jurisdiction over other parties not in Franklin county, can not be made by suing that company and serving pro¬ cess upon it in Franklin county. The only sense in which it can be said the Cleveland, Columbus, Cincinnati and Indianapolis Company was not adversely interested is this: A corporation can have no legal interest adverse to its own existence, or adverse to the limitations of its charter. But in this view there could be no jurisdiction for remedies at the suit of stockholders against a corporation for acts ultra vires. Yet the juris¬ diction is established. The idea, therefore, in the only sense in which it can be true, is irrelevant to the case. The writ of error in this case can in any event reach no further than the question of jurisdiction, if that, ques¬ tion shall be decided in favor of defendants in error. Goode v. Wiggins , 12 Ohio St 341. The case of C. S. $ C. R. Co. v. Sloan , 31 Ohio St. 1, i does not, as I understand it, controvert the principle stated in Goode v. Wiggins. Mr. J ustice White, in delivering the opinion, said : • } l! i.Gi , “And it seems to us that where property has been taken under a special proceeding, and an order has been made determining the rights of the parties in such proceed¬ ing, as by vacating a receivership or discharging an attach¬ ment, that an order made, which deprives a party of thd benefit of adjudication , affects a substantial right.” In Good v. Wiggins , the receivership had not been dis¬ charged. The mischief had not happened which was the test in the case against Sloan. There had not, therefore, been an order determining the rights of the parties. In [ 66 ] the case against Sloan there had been such an order. It # “ deprived the party of the benefit of adjudication,” and in that sense affected a substantial right. So in Watson Sf Co. v. Sullivan , 5 Ohio St. 42, an at¬ tachment was discharged. It is not my contention that, under the Ohio code, and on the principle stated in the case against Sloan, a receiver¬ ship may not be granted under circumstances possible to be ♦imagined, which would be discharged on a writ of error. But my contention is that the situation in this case is not one which in the exercise of sound discretion, either calls for or permits such a discharge. I contend that the action was rightly brought and service of process rightly made on the Cleveland* Colum¬ bus, Cincinnati and Indianapolis Company in Franklin county; that process was rightly issued to other counties, and rightly served on the other defendants; that the agree¬ ment for consolidation was on its face, when compared with statutory requirements, null and void; or, conceding to possible differences of opinion, it was at best so loose and vague that parties in interest might well doubt its valid¬ ity, and that the situation created was one which not only justified, but required that it should be tested. I contend that the granting of the restraining order was a reasonable and ordinary exercise of judicial discre¬ tion in administering remedial justice; that the refusal of defendants to respect and obey the restraining order, and their persistence in defiance of it, in taking the forbidden steps to extinguish the old corporations, and in transferring the assets to a new one, before their right to do so could be tested, demanded the prompt appointment of a receiver. Less than was done would have been misunderstood. It would have represented remedial processes and tribunals in [ 67 ] the presence of an audacious combination as inapt and al¬ ready enfeebled. The view which I take of the case renders it unneces¬ sary to discuss the proceedings in the Court of Common Pleas of Cuyahoga county.