author: Okey, C. J. Johnson, J. Longworth, J.

text:
    The State v. Vanderbilt.
    1. Two railroad companies owning lines of railroad connected only by other railroads which such companies hold by lease, are not authorized to become consolidated into one corporation under Rev. Stats. § 3379.
    2. The lines of two railroad companies, which are in their general features parallel and competing, cannot be connected for the carriage of freight and passengers over both “ continuously,” within the meaning of Rev." Stats. § 3379, and hence such companies cannot become consolidated into one corporation under that section.
    3. A certificate made by the directors of consolidating railroad companies under Rev. Stats., § 3381, which fails to show any place of residence of the directors of the new company, is fatally defective.
    Quo Warranto.
    The Cleveland, Columbus, Cincinnati and Indianapolis Railway Company and the Cincinnati, Hamilton and Dayton Railroad Company became consolidated into one corporation, it is claimed, in 1881, under the name of the Ohio Railway Company, by authority conferred in Revised Statutes, § 3319. Each company held by lease the roads of other railroad companies; the lines of the consolidating companies were connected only by such leased roads; and previous to the alleged consolidation the consolidating companies, with the lines which they held by lease, constituted two lines which were parallel and competing, to the extent indicated in the opinion of the court, for the carriage of freight and passengers from the city of Oincinnati to Lake Erie.
    This is an action in quo warranto to oust the defendants from their franchise to be such new corporation. A number of questions were discussed by counsel and considered by the court, but the decision is confined to a determination of the following questions:
    1. Whether two railroad companies owing lines of railroad connected only by other railroads which such companies hold by lease, are authorized to become consolidated into one corporation under Rev. Stats. § 3379, which only permits companies to consolidate where their “ lines of road ” are so connected that cars may pass from the line of one company to the line of the other “ without break or interruption.”
    2. Whether the lines of the two railroad companies named are, in their general features, parallel and competing, and if so whether they can be consolidated, under that section which authorizes consolidation only for the carriage of freight and passengers “ continuously.”
    3. Whether a certificate made by the directors of consolidating companies under Rev. Stats. § 3381, which fails to show any place of residence of the directors of the new company, is fatally defective.

      George K. Nash, Attorney General, for the plaintiff,
    presented the point that the lines of road owned and operated by the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and the lines owned and operated by the Cincinnati, Hamilton and Dayton Railroad Company were competing, and therefore the two companies were not authorized to consolidate by section 3379 of the Revised Statutes of Ohio. Section 3300 preserves competition, and section 3379, if interpreted as the defendants desire, destroys it.

      If sucli companies can consolidate, then section 3379 is in . conflict with section 3300, which relates to leasing, purchasing or any other mutual arrangement between railway companies.
    It is not probable that the General Assembly intended to permit railway companies to accomplish by consolidation what they were prohibited from accomplishing by lease, purchase or any other mutual arrangement.
    When there is a conflict of statutes, the court should reject that construction which is against public policy. Consolidations which have a tendency to prevent a healthy competition between railway companies, are against public policy. Pierce on Railroads, ed. 1881, 513 ; Green’s Brice’s Ultra Vires, 417; Sanford v. Railroad Co., 24 Pa. 382 ; H. & N. H. R. R. Co. v. N. Y. & N. H. R. R. Co., 3 Robertson (N. Y.) 415 ; State v. H. & N. H. R. R. Co., 29 Conn. 539 ; Doolin v. Ward, 6 Johns. 149; Hooker v. Vandewater, 4 Den. 349; Stanton v. Allen, 5 Den. 434; Hood v. N. Y. & N. H. R. R. Co., 22 Conn. 502.

      B. H. Bristow, also for plaintiff:

      First. The proceedings for consolidation were irregular and insufficient.
    I. A strict compliance with the statute is necessary to secure the powers granted thereby. In case of the organization of a corporation under a general law the articles or certificate of incorporation must contain the statements affirmatively required by the law, because those statements constitute conditions precedent to the right to become incorporated. Eastern Plank Road Co. v. Vaugham, 14 N. Y. 546 ; Atlantic, &c. Ry. Co. v. Sullivant, 5 Ohio St. 276; State ex rel. v. Lee, 21 Ohio St. 662; Raccoon Co. v. Eagle, 29 Ohio St. 238; State ex rel. v. Central Ohio Ass’n, 29 Ohio St. 399; Hains v. McGregor, 29 Cal. 124; People v. Selfridge, 52 Cal. 331; Dutchess, &c. R. R. Co. v. U. Cabbett, 58 N. Y. 397 ; West v. Ditching Co., 32 Ind. 138 ; Torraus v. Voscoucelles, 23 Ill. 456 ; Bigelow v. Gregory, 73 Ill. 197; Abbott v. Omaha Co., 4 Neb. 416 ; Childs v. Smith, 55 Barb. 45, 54; Williams v. Franklin Association, 26 Ind. 310 ; Indianapolis Ins. Co. v. Herkimer, 46 Ind. 142; Field v. Cooks, 16 La. Ann. 153; In re Deveaux, 54 Ga. 673; Carlisle v. Cahawba Railway Co., 4 Ala. 70; Becht v. Harris, 4 Minn. 504; Mokelumne Co. v. Woodbury, 14 Cal. 424. The same rule applies to corporations formed by consolidation. Mansfield, &c. R. R. Co. v. Brown, 26 Ohio St. 223; Peninsular R'y Co. v. Thorp, 28 Mich. 506; Mansfield, &c. R. R. Co. v. Drinker, 30 Mich. 124; Tuttle v. Michigan Air Line Co., 35 Mich. 247.
    II. The defendants have failed to comply with the statute. Statutes, § 3381. (1) The agreement does not state the residence of the directors.
    III. In a direct proceeding by the state these defects are fatal. The courts will not undertake to say that any condition imposed by the legislature is not material. People ex rel. v. Kingston, &c. Turnpike Co., 23 Wend. 193; Torrans v. Vascoucelles, 23 Ill. 457; Hains v. McGregor, 29 Cal. 124.

      Second. The Cincinnati, Hamilton and Dayton Railroad Company and the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company had no power to make the attempted consolidation.
    I. The attempted consolidation was ultra vires of the corporations joining therein. The statutory provision is that “ 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 company.” § 3379.
    Railroad companies had no power to consolidate unless they came within these provisions. Dartmouth College v. Woodward, 4 Wheat. 518; Thomas v. Railroad Co., 101 U. S. 71; Railroad Co. v. Hains, 12 Wall. 65; White's Bk. v. Insurance Co., 12 Ohio St. 601; Booham v. Taylor, 10 Ohio, 108; Shields v. Ohio, 95 U. S. 319; 26 Ohio St. 86. The power granted is to be construed strictly and most strongly against the corporation. Comer v. Railroad Co., 11 Ohio St. 231; State v. Gas Light Co., 18 Ohio St. 262; Miami Co. v. Wigton, 19 Ohio St. 560. When there is doubt that fact is fatal to the existence of the power in question. Fertilizing Co. v. Hyde

      Park, 97 U. S. 659 ; Black v. D. & R. Canal Co., 24 N. J. Eq. 455 ; In re N. Y. & H. R. R. Co. v. Kip, 46 N. Y. 546; White’s Back v. Toledo Co., 12 Ohio St. 601; Green’s Brice’s Ultra Vires, 2 ed. 62. The roads now seeking to consolidate are not embraced in the terms of the statute. (1) Their lines of road are not so constructed as to admit the passage of burden or passenger cars over such roads continuously, without break or interruption. The lines of road of the companies are not continuous at all, for the reasons that they do not come into contact with each other, and that they do not extend in the same general direction. (2) The continuousness required by the statute is not secured by the fact that the roads seeking to consolidate are connected by leased lines. The general principle is that no agreement or contract, merely covering the operation or use of a road, will change its ownership. Railroad Co. v. Winans, 17 How. U. S. 30; Mayor, &c. v. N. & W. R. R. Co., 109 Mass. 103; Mead v. N. Y., H. & U. R. R. Co., 45 Conn. 199 ; Buck v. Seymour, 46 Conn. 156; Wallaces. Long Island R. R. Co., 12 Hun, 460 ; President v. Railroad Co., 7 Lans. 240 ; Black v. D. & R. Canal Co., 22 N. J. Eq. 130, 403; 24 N. J. Eq. 455 ; Whitney v. Atlantic & St. L. R. R. Co., 44 Me. 362; Nelson v. Vt. & Canada R. R. Co., 26 Vt. 717 ; Langley v. Boston & Maine Co., 10 Gray, 103 ; Ohio & Mississippi R. R. Co. v. Dunbar, 20 Ill. 623. This is in accordance with the result of the decisions in this state upon the subject of permanent leaseholds, namely, that such leaseholds are personal estate in all respects, save as to judgments, executions, sales and descents. Bisbee v. Hall, 3 Ohio, 449 ; Reynolds v. Commissioners, 5 Ohio, 204 ; Murdock v. Radcliff, 7 Ohio, 119; Loring v. McCady, 11 Ohio, 358 ; Lessee of Boyd v. Talbert, 12 Ohio, 213; Northern Bank v. Roosa, 13 Ohio, 334; Taylor v. De Bas, 31 Ohio St. 468.
    It is clear too, from the provisions for payment of rental, forfeiture and re-entry, contained in the leases and established by statute (§ 3305), that the relation of the lessees to the leased lines is not that of ownership.
    II. The attempted consolidation is contrary to public policy. The roads are competitive (Central R. R. v. Collins, 40 Ga. 582; Midland R'y Co. v. Great Western R’y Co., 2 Nev. and Macn. 88), and the object of the consolidation is to prevent competition. It is the settled public policy of the country not to permit consolidation of competing roads. In nine states of the Union this principle has been incorporated in strong terms into the constitution, namely, Pennsylvania (Const. art. XVII. § 4), West Virginia (Const. art. XI. § 11), Illinois (Const. art. XI. § 11), Michigan (Const. art. XIX. A, § 2), Missouri (Const. art. XII. § 17), Nebraska (Const, art. XI. § 3), Colorado (Const. art. XV. § 6), Georgia (Const. art. IV. § 2, part 4), Texas (Const. art. X. § 5). In six states the same principle has been established by statute, namely : New Hampshire (Gen. Stats, p. 377, § 11), New York (Laws of 1869, ch. 917, § 9, Laws of 1881, ch. 685), North Carolina (R. S. p. 751 [65]), Wisconsin (R. S. § 1833), Minnesota (R. S. p. 381, § 66), Iowa (1 R. S. p. 356, § 1297). In twelve states there is no general provision authorizing consolidation. Such action can be there taken only by special act, namely : Maine, Vermont, Massachusetts, Rhode Island, Connecticut, Delaware, Maryland, Virginia, Mississippi, Kentucky, Oregon, Louisiana. This is also the case with the United States. All of the remaining States, with the exception of two (California and Nevada), impose various limitations upon the power of consolidation. This principle of public policy is'recognized by the courts. Central R. R. Co. v. Collins, 40 Ga. 582, 630, 640; Board, &c. v. L. B. & M. R. R. Co., 50 Ind. 85 ; Stewart v. Erie Co., 17 Minn. 372; Gaslight Co. v. Same, 25 Conn. 19; Hooker v. Vandewater, 4 Den. 349. The policy of the state of Ohio upon the subject is the same. This is shown by the fact that leasing is permitted only when the roads are “ not competing ” (§ 3300). This court has recognized the public policy which forbids monopolies. State v. Telephone Co., 36 Ohio St. 296; State v. Gaslight Co., 18 Ohio St. 262; Cramford v. Wick, 18 Ohio St. 190.
    III. These considerations of public policy are conclusive against the consolidation. The general rule is that if the power to do tire act, or make the contract under consideration, is not expressly given or clearly implied from the granted powers, tlie power cannot be said to exist. White's Bank v. Toledo Co., 12 Ch. St. 601. This rule is founded upon public policy. Fertilizing Co. v. Hyde Park, 97 U. S. 659; Black v. D. & R. Carnal Co., 24 N. J. Eq. 455; Bissell v. Railroad Co., 22 N. Y. 253. The fact that the proposed action is contrary to public policy is an additional reason for rigorously enforcing the general rule of strict construction. Central R. R. v. Collins, 40 Ga. 262; State v. Gaslight Co., 18 Ohio St. 223; Black v. D. & R. Canal Co., 22 N. J. Eq. 402; 24 N. J. Eq. 455. From the doubt as to the existence of any power in these companies to consolidate the resolution irresistibly follows that such power has no existence whatever!

      A. F. Perry, also for plaintiff:
    I. In order to restrain abuse of corporate franchises, 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 permit the union of parallel or competing lines of railway in one and the same interest, by aid, lease, purchase, consolidation, or otherwise. Const. of Michigan, 1850, art. XIX. § 2 ; Const. of Illinois, 1870, art. XI. § 11; Const. of Missouri, 1875, art. XII. § 17 ; Const. of Pennsylvania, 1873, art. XYII. § 4; Statute of Pennsylvania, Laws of 1870, p. 31, § 1; Statute of New Hampshire, Revision 1878, ch. 158, §§ 11, 12, 13 ; Statute of Maryland, Rev. 1878, § 21, p. 359; Bissel’s Stat. of Minnesota, 1873, pp. 427, 428 ; Rev. Stat. of Texas, 1879, p. 610, §4246 ; Rev. Stat. of West Va., 1879, vol. 2, p. 948, §28; McClain’s Stat. of Iowa, vol. 1, p. 356, §1297; Rev. Stat. of Maine, 1871, §§ 26, 23, p. 453 ; Rev. Stat. of Wisconsin, 1879, p. 134 ; Compiled Laws of Kansas, 1881, ch. 84, §§47, 49, p. 787; 7 N. Y. Stat. at Large, pp. 529, 530; Genl. Stat. 1875, p. 24, ch. 108; Stat. of Nebraska, 1881, pp. 304, 305; Davis’ Stat. of Indiana, pp. 728, 717; Rev. Stat. of Ohio, 1880, §§ 3300, 3369, 3308, 3379, 3380. The first general act of Ohio authorizing consolidation of railway companies was the act of March 3, 1851 (2 Curwen, 1656, 1657), when constructed, &c., “ so as to admit the passage of burden or passenger cars over any two or more of such roads continuously, without break or interruption.” 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 act of April 10,1856 (4 Curwen, 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 authorized 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.” The act of May 6, 1869 (3 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. 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 several provisions of the Revised Statutes of Ohio, relating to aiding, leasing, purchasing, or consolidating railway corpoiations; or to contracts between companies not to compete with each other, are all directed to the same mischief, are injpari materia, and should be construed as consistent with each other. Section 3300 of the Revised Statutes, based upon a fundamental principle of the law of corporations, that “ the powers of a corporation organized under a legislative charter are only such as the' statute confers, and the enumeration of them implies the exclusion of others.” Thomas v. Railroad Co. (11 Otto, 71), gives authority to aid, lease, or purchase, only when not competing; but as there are 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 companies whose linos are so connected and not competing, may enter into any arrangement for their common benefit consistent with and calculated to promote the objects for which they were created.” Nothing is permitted which unites competing roads under control of the same interest. 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 everything 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. The sections allowing consolidation limit it to instances where the roads are so constructed or designed “ as to admit the passage of burden or passenger cars over any two or more of such roads continuously ;” 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 continuous line for the passage of cars.” The two forms of expression mean the same thing and explain each other. No 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 section 3379 ; “ when the lines of any railroad 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 of burden or passenger cars over any two or more of such roads continuously, without break or interruption.” In section 33.80, the consolidation is permitted “ when’ the several roads so united will form a continuous line for the passage of cars.” The argument here compared the language of the Ohio statutes with the language used in other states. The phrase “ continuous line ” is much used. I apprehend 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 duplicate the means of communication between the same termini. See Webster’s Unabridged Dictionary and Worcester’s Unabridged. 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 competingand -any two or more companies, “ whose lines are so connected and not competing, may enter into any arrangement for their common benefit consistent with and calculated to promote the objects for which they were created.” This propounds a comprehensive policy, which is carried out and not contradicted by any of the other sections. I have endeavored to show that the other sections, construed by them selves, so far as they go, express the same policy. If, however, the construction of sections 3379, 3380 were more doubtful than I suppose it to be, they should be construed as in pari materia with sections 3368, 3369, 3300. No reason can be imagined why the benefits to the public of competing lines should be so stringently secured and guarded by sections 3300, 3368, 3369, and not equally secured and guarded in sections 3379, 3380. Consider what other construction is possible. If you so construe section 3379 as in effect to deny any meaning whatever to the phrase “ continuously, without break or interruption,” and to deny any meaning in section 3380 to the phrase, “when the several roads so united will form a continuous 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. By section 5381, the steps therein prescribed to bring about consolidation are declared to be “ conditions and restrictions,” and are thus placed on the same legal footing with the preliminary steps in forming other railroad corporations.
    II. 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 [included in it. Among other requisites, the agreement must ' “ prescribe tho number of directors and other officers ” of the 'new company “ and their places of residence.” The agreement, so made, shall be 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 specified 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 installments called for by the boards of directors, entitling the holder of it to one vote. If two-thirds of all the votes east at each separate meeting be for the adojrtion 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. Not until the agreement is so made and perfected, and the same or a copy thereof filed with the Secretary •of State, shall the several corporations parties thereto, be deemed or taken to be one corporation, &c., &c. It is incumbent on the 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, Second, that the proceedings taken have been regular, and such as the law requires for that purpose. The argument analyzed the contract relations of the several railroad companies, with reference to the statutory requirements, contending that the relations of the companies were not such as can be consolidated. 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 companies, and to exercise their corporate functions in connection with the use of the property. They empower the owner companies to resume possession of the roads on failure of the other parties to perforin conditions of a kind not usually connected with title to real estate. The situation is unlike that of the lessee of real estate. 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 abdicate them. The lessor company which leases a railroad is liable for the negligence of the lessee. York & Maryland L. R. Co. v. Winans, 11 H. 30 ; Railway v. Barron, 5 Wall. 90; Chicago & R. I. 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. Vt., &c., 26 Vt. 717 ; McElroy v. Nashua, &c., 4 Cush. 400 ; Brice on Ultra Vires (2 ed.) 305 n.; Railroad v. Balner, 57 Ind. 572 ; Railroad v. Mayes, 49 Geo. 355; Langley v. Railroad, 10 Gray, 103; Railway Co. v. Barron, 17 Wall. 445; citing Redfield on Railways (5 ed.) ch. 22, § 1, p. 616. If the lessee companies were held to have the requisite ownership of the leased lines, each of the contracting companies would own a through line and the lines would be parallel and competing lines. Again: if the companies contracting to consolidate own the linos contracted to them, the Cincinnati, Hamilton and Dayton Company owns the Cincinnati, Richmond and Chicago road, which docs 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 required 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 consolidation includes them all, none of the companies can be consolidated. But if the two companies contracting to consolidate own all the lines, the consolidation of the contracting corporations will consolidate them all. Admitting for argument 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 contract with tbe Cincinnati, Sandusky and Cleveland Company, nor did it assign to Cleveland, Columbus, Cincinnati and Indianapolis Company more than it had by its contract. In this view the companies contracting for consolidation were not so constructed or planned that the two roads united formed a continuous line for the passage of cars.

      E. A. Ferguson, also for plaintiff:
    I. If the defendant, upon an information in the nature of a quo warranto, fails in the title he sets up, judgment must be for the state. Cole on Quo Warranto, 212 ; Rex v. Leigh, 4 Burr. 2143; State v. Sherman, 22 Ohio St. 411-932.
    II. The uniform language of the English and American courts is that while all grants of privileges are to bo liberally construed in favor of the public, they are to be strictly construed as against the grantee of a monopoly, franchise or charter, and whatever is not unequivocally granted in such acts is taken to be withheld. All acts of incorporation and acts extending the privileges of incorporated bodies are to be taken most strongly against the companies. Sedgwick on Statutory Law, 292; Pa. Railroad Co. v. Canal Comrs., 21 Pa. St. 9-22; Comr. v. E. & N. E. R. R., 27 Pa. St. 339, 351; Railroad Co. v. Harris, 12 Wall. 65, 81; 2 Kent Comm. 299; Dartmouth College v. Woodward, 1 Wheat. 518, 636 ; Thomas v. Railroad Co., 101 U. S. 71; Strauss v. Eagle Ins. Co., 5 Ohio St. 59-61.
    III. In view of these well-settled principles of law. what title have the defendants to exercise the franchises called iu question 1 ■

      First. As to the agreement of consolidation. Sections 3381, 1 and 2, 3382, 3383, 3381. The agreement of consolidation does not state the. places of residence of the directors or officers of the new company.

      Second. The lines of railroad of the companies proposing to consolidate, were not connected or continuous, nor constructed so as to admit of the passage of cars continuously "without break or interruption. Prior to the act of March 3, 1851 (1 S. & C. 275-280), there was no law authorizing consolidation, or the granting of aid, or the leasing or purchasing of one road by a company owning another. The act of April 10, 1856 (1 S. <& C. 327), authorized the consolidation of railroad companies in the state with railroad companies of states adjoining in certain cases. The corresponding sections of the Revised Statutes are sections 3379, 3380. Section 3306 of Rev. Stat. authorizes extension of a line. The material portions of the laws authorizing granting aid, leasing or purchasing, are: section 4 (Act March 3, 1851), S. & C. § 41, p. 281; section 1 (Act March 19, 1869), 66 Ohio L. 32; section 1 (Act April 15, 1873), 70 Ohio L. 129. The corresponding section of the Rev. Stats, is section 3300. The proper construction of these laws is that the power to consolidate is given only to companies whose lines of road are connected and continuous, and which were built or are owned by them. It does not exteiid to leased lines. As to the latter the lessee is simply the bailiff of tire owner. Railroad Co. v. Canal Comrs., 21 Pa. St. 9; Railroad Co. v. Sly, 65 Pa. St. 205 ; Campbell v. M. & C. Railroad Co., 23 Ohio St. 168-188; Taylor v. DeBus, 31 Ohio St. 468-472; Northern Bank v. Roosa, 13 Ohio, 334-363 ; Railroad Co. v Stout, 26 Ohio St. 242-257.

      Third. The lines of road proposed to be consolidated in the present case are competing, and between Cincinnati and Dayton, parallel and competing. Straus v. Eagle Ins. Co., 5 Ohio St. 61. If by virtue of the lease of the Cincinnati and Springfield road, the Cleveland, Columbus, Cincinnati and Indianapolis road formed a connection at Dayton with the Cincinnati, Hamilton and Dayton road, it by the same instrument created a parallel and competing road from Dayton to Cincinnati. Neither the Cincinnati and Springfield Company, nor the Cleveland, Columbus, Cincinnati and Indianapolis Company, before or after the lease, could have leased or puz’clzased the Cincinnati, Hamilton and Dayton road, because the latter formed a competing line between these points. Can the sazne object be accomplished by consolidation contrary to the manifest policy of the state, as shown by section 3300 Gf the Revised Statutes ? If it can, “ the legislature has opened a way by which all the railroads in the state may paiss into the hands ” of one company. In effect, a consolidation is a purchase. Campbell v. M. & C. R. R. Co., 23 Ohio St. 189, 190; Shields v. State, 26 Ohio St. 86-92; Rev. Stat. § 3381; 2 Washburn on Real Property, 101; Shields v. Ohio, 95 U. S. 319-323; Urmey's Ex'rs v. Wooden, 1 Ohio St. 160-166.

      Converse, Booth & Keating, and R. C. Parsons, also for the plaintiff.

      Harrison, Olds & Marsh, for defendants :
    I. All the words of section 3379, Rev. Sts., authorizing railroad companies in this state to consolidate themselves into a single company, are simple and plain. If we consider only these words, no doubt as to their meaning can arise. We miist look elsewhere for any suggestion of doubt as to what the legislature intended; and it must spring, if at all, from the consideration of some extraneous matter. The provisions of this section were first enacted by a statute passed March 3, 1851 (19 Ohio Laws, 91). Prior to 1818, railroad companies were created only by special charters. February 11, 1818, a general law was first enacted conferring corporate powers and privileges upon railroad companies. This statute did not authorize such companies to consolidate. But by said act of March 3, 1851, the legislature enabled such companies to consolidate. The mischief -which that act was intended to remedy, was, that separate railroad companies' in this state could not consolidate themselves into a single corporation. The remedy provided is a law which declares, in so many words, that “ when the lines of railroad of any railroad companies in this state, or any portion of such lines, have been or may be constructed so as to admit the passage of burden or passenger cars over any two or more of such roads continuously, without break or interruption, such companies are hereby authorized to consolidate themselves into a single corporation,” &c. Looking, therefore, at the previous state of the law, the mischief intended to be remedied, and the remedy provided, still no doubt is suggested as to the intention of the legislature, or that it intended anything more, or less, or other, than what it plainly expressed. There is nothing in the
      context of the statute which, suggests such a doubt. Indeed, there is nothing in the context which relates to the subject; all that is said about what companies shall have power to consolidate, is said in this section itself. There was no statute relating to the subject earlier than said act of March 3d, 1851. The subsequent statutes, including the one under consideration, are in substantially the same language. It cannot he contended that under any construction of the language, the statute is in conflict with the constitution of the state, and that therefore it should be expounded in some particular way, to avoid such conflict. The authority of the legislature to create such corporations and with such powers as it may deem best, and either by an original formation, or by an amalgamation of previous by existing companies, is unlimited. There is no restriction on the exercise of the power, except that under the present constitution of the state it must not be done by a special act. If the legislature had provided that amy railroad companies in this state might consolidate, the enactment would have been valid. There might be a difference of opinion concerning the policy of such a law. Some would believe that it might be safely left, and should be left, to the judgment of the companies themselves, guided by their business interests, t o determine whether or not they would amalgamate into a single corporation. Men would differ in opinion as to how such unlimited power to consolidate might affect' the shipping interests or the carrying interests. Shippers, and the holders of stock in carrying corporations, would probably differ in opinion as to whether good policy required that the laws should specially favor the shippers to the great detriment of the carriers. Prior to the general corporation act of 1852, the amount of capital of each corporation in this state was limited by its special act of incorporation. Under that act, any number of natural persons might become a body politic for either the purposes therein named, with such amount of capital stock as they might in their certificate designate. Every legislature since then rapidly multiplied the number of objects for which corporations might be organized, until in the session of 1879 it was enacted that “ corporations may be formed .... for any purpose for which individuals may lawfully associate themselves, except for dealing in real estate, or carrying on professional business.” So it is plain that there is no settled and abiding principle of public policy in regard to this subject, to which the courts may loot for the purpose of ascertaining any. probable intention of the lawmakers. If the court might ever go off into surmises and speculation as to the policy of the law to befog what is plainly expressed, the legislature has here precluded that, by expressly limiting the ojxeration of the general words “ any railroad companies,” and clearly expressed such restriction. In such cases, besides the rule that it is not allowable to interpret what has no need of interpretation, the maxim expressio unius est exolusio alterims, applies. That is to say, all further limitation than that expressed, of the general words used, or of the class of x-ailroad that may consolidate, is excluded. The principle is, that where a power is conferred upon corporations by a general law, and the power is restricted in some particular, it will be presumed that no other or further restriction was intended. Notwithstanding the well settled rules which govern the construction and effect of statutory law, opposing counsel contend that this statute should be constxmed as if it read, “ when the lines of road [owned in fee simple absolute] by any railroad companies in this state, or any portion of such lines, [between the termini named in their respective charters or certificates of incorporation] have been or are being so constructed [at a common terminus], so as to admit the passage of bux’den or passenger cars over any two or more of such roads continuously, without break or intemxptioxx, [and are not competing, and no lines of road of said companies extend in like direction, beyond their places of connection], such companies may consolidate themselves into a single company.” The argument to support this contention must, necessarily, be, that if the court cannot bring such sense out of the words actually used, it should bring such sense into them. But the court cannot do that, for, to give the statute such exposition, it is not enough to depart from the usual and ox-dinary meaning of the plain wox-ds used, and to give them some extraordinary meaxxing, which they are still capable of bearing; but it is necessary to supply and interpolate other language than that used. Tho plain words of this statute do not need interpretation. It is only by sheer speculation and surmises as to the policy of the act, that any question as to its meaning can be suggested. And if, upon suggestions of extraneous matters, the court were led to suppose that the legislature intended either to restrict or extend the application or operation of tho statute more than is expressed, it could, in this instance, give to the enactment such restrictive or extensory effect only by expunging what is written, or interpolating what is not written; for the language is too plain and simple to admit of such restriction or extension by any speculation upon the reasonable import of the words used. “ What the legislative intention was, can be derived only from the words they have used, and wo cannot speculate beyond-the reasonable import of 'these words. The spirit of the act must be extracted from the words of the act, and not from conjectures aliunde.” Gardner v. Collins, 2 Pet. 93; Smith’s Com. St. & Com. Law, §§ 647, 8, 714; Dwarris, 582, 3 ; Brown v. Hunt, 18 Ohio St. 340 ; Wilcox v. Nolze, 34 Ohio St. 523. The primary rule for the construction of statutes is, that the intent of the legislature is to be found in the ordinary meaning of the words of the statute. Woodworth v. State, 26 Ohio St. 197. When the words of the statute are plain, explicit and unequivocal, a court is not warranted in departing from the obvious meaning, although, from considerations outside of the language of the statute, it may be convinced that the legislature intended to enact something different from what it did in fact enact. Woodbury v. Berry, 18 Ohio St. 456; Sedg. on St. & Com. Law, 231; Smith’s Com. St. & Com. Law, § 714. The adverse counsel assert that it is against sound policy to empower railroad companies whose lines of road are competing, to consolidate, and they therefore contend that the legislature did not intend to confer such power; but they are constrained to admit that the question of policy is one for the legislature, and not for the courts, to determine. They must further admit that it is of the nature of legislative bodies to judge the exigency upon which their laws are founded, and when they speak, their judgment is implied in tlie law itself. 7 Cow. 585. It is not a sound rule that words in a statute are to be construed in accordance with what the court may regard sound public policy, because men’s minds differ much on the nature and extent of public policy. In construing a law, it may be that where there is doubt as to the meaning or application of its language, the policy which /induced its enactment, and the mischief it was intended to prevent, is a proper subject of consideration. So, the public good or public policy, in some classes of eases, has been regarded as a proper ground or reason for a judicial decision, and contracts have been held illegal and void as against public policy, where the public policy they violate, is clearly manifest. But it would be a wholly unwarrantable exercise of power, if not a clear usurpation, for a court, upon a conception of what would be a wise policy, to change established rules of law to a greater extent than the language of the legislature, fairly interpreted, required. Hurd v. Robinson, 11 Ohio St. 232, 237. It is one thing to construe the words of a statute, and another to either restrain or extend its operation beyond what the words of it express. Turner, L. J., 7 De G., M. & G. 539. In this instance, the first language of the statute is generic—“ the lines of road of any railroad company in this state.” No class or classes of “ lines,” or “ railroad companies,” are designated by any preceding words of particular description. Yet it is sought to engraft upon it the limitation that no railroad companies whose lines of road are competing shall consolidate. To do so, it is necessary to expunge or qualify the word “any,” and interpolate other words which are not used. The words “not competing,” or others of like import, must be supplied. Why not supply instead, or in addition, the words, “ using the standard gauge,” or “ whose capital stock has been fully paid up,” or “ owing no debts secured by mortgage upon their property ?” If a court can, in construing a statute, supply or change language to improve it, upon the supposition that the legislature intended to enact a law whose provisions would commend itself to the court, there is no guide or limit except the judgment of the court, as to what sound policy requires. Previous legislation shows that the legislature did not consider that competing lines would be embraced in the words “ continuous or connected.” See amendment of 1873 (70 Laws, 12-9), to section 21 of the general corporation act of 1851 (1 S. & G. 281). This amendment shows, conclusively, that in the judgment of the legislature, competing lines of railroad were embraced in the original act, and that they could be excluded onty by incorporating other words and by an additional express provision. Houk v. Minnick, 19 Ohio St. 167. If a contemporaneous construction by the legislature of the same words can be discovered, it is very strong evidence of the sense intended. The legislative understanding of the meaning of these wrords is made still more manifest by their use in the chapter of the Revised Statutes which contains Section 3379, authorizing consolidation. The use of the words “ and not competing,” in section 3300, and their omission in section 3379, demonstrate that they were regarded as of much significance and consequence, and that the legislature meant to-express a different intention in that regard in the two sections— otherwise they would have been inserted in both or omitted ini both. Besides, if the meaning of an enactment is not plain,, light may be thrown upon it by observing that certain words, which we might reasonably have expected to have found in the enactment, have obviously been omitted from it by design. Hardcastle Const. St. Law, 13. In this enactment, the insertion and omission were evidently by design. The legislature of Ohio early adopted the policy of authorizing several railroad companies to combine their interests and stock by consolidating themselves into a single company. It is not surprising that they did so; and that such consolidation was authorized almost ¡vithout restriction or limitation. The geographical and commercial position of this state suggested a liberal policy in that regard. Ohio holds the key of commerce between the eastern states and the states south and west of her. The consolidation of railroad companies is a very useful and just mode of managing the business of different lines, or the same continuous line often, where competition is liable to do harm, both to the traffic and the shareholders. 2 Redf. Railways, 656. It is now recognized as an established fact that such consolidations have cheapened the rates of transportation. By the constitution of this state, railroad companies are subject to legislative control as to their rates of freight aud fare ; and this fact dispels the cardinal ground of objection urged elsewhere against consolidation. Consolidation is better for the public, as well as the stockholders, than the practice of-what is known as “ pooling profits.” There is no principle of public policy which renders void a traffic arrangement between two lines of railway for the purpose of'avoiding competition. 1 Redf. Railways, 613, and cases cited. The advantage of consolidation over such arrange- > ments, is, that by the former a group of companies are operated and managed by a single organization, which promotes efficiency, safety and cheapness in transportation. Wherever there is a break in management in the railroad system, the intercourse of the community experiences a jar or shock, the sense of which is lessened in the exact degree in which such break of management is overcome by a closer connection. For these and other reasons, the legislature has prescribed but one single condition of consolidation; which is, that the roads shall be so constructed as to admit the passage of freights and passengers without transshipment or changing cars. In 1857 (S. & C. 325, Rev. St. § 3340), an act was passed to encourage such construction. In 1852 (S. & C. 331, Rev. St. 3338), an act was passed to facilitate the passage of cars over roads which connect or cross each other. Manifestly, the same controlling and important object,—to avoid the inconvenience and expense of changing cars or breaking bulk,—induced the legislature to make the condition, and the only condition, to the power of railroad companies in this state to consolidate, that their lines of road had been or were being so constructed as to admit the passage of cars over any two or more of such roads continuously, without break or interruption. The condition was affixed as an inducement to so construct the roads as to facilitate the passage of cars, and avoid the necessity of changing cars or transshipping freights. The purchase and leasing of railroads much more intimately affects domestic or local transportation than does the consolidation of railroads. It is generally of shorter lines. It is much more frequent. It is a more available way of suppressing local competition tlian consolidation. If a rival sets up in business, a much more effectual way to suppress and discourage competition is first to break him down and then buy him out, rather than to take him into partnership. One object of passing the statute of 1873, which disabled a railroad company in this state from leasing or purchasing all or any part of a railroad constructed by another company in this state, when the lines of road were competing, may have been to protect weak railway companies from the more powerful, by destroying one motive for ruinous competition. The great corporation might reduce fare and freights for the purpose of compelling the weaker one to lease or sell to it. By disabling such competing company from buying or leasing, this motive would be removed. But one company would not seek to ruin another for the purpose of consolidating with it. Upon such consolidation, the two companies go into business together, and the new comp.any takes the assets and business and assumes the liabilities of both the old companies. The criterion fixed, from which to determine whether or not railroad companies may consolidate, is the form of construction—the physical fact. Whether railroad companies are competing or not, is not a physical fact. That depends on the business of the companies, the channels of trade, the management of the companies, and the ownership of the roads. Generally,' to enable railroad companies to compete, their lines of road must' extend from and to the same or neighboring points along the same route for transportation. They must be so situated as to be able to accommodate the same customers. But railroad companies may have the ability to compete, and still not be competing. They may so agree among themselves as to the distribution of freights and fare, as to destroy competition, and all inducement to compete. They frequently do this by “ pooling arrangements.” The lines of road may be such as to accommodate the same trade, and not be competing. One company may construct and operate a. double-track, or two roads, between the same points. In such case there could be no competition. Two companies may own two lines of road which accommodate the same traffic, and the companies may compete for business; but if one company should buy or lease the road of the other, or the two companies should consolidate, the two roads would no longer be competing. The location and form of construction would remain the same ; but the management and business interests would change. If the legislature had intended not to permit railroad companies in this state whose lines of road compete, to consolidate, such intention would have béen expressed. In the statutes of other states wherever the consolidation of competing companies is not permitted, it is plainly inhibited. Surely, when the attention of the legislature of this state was specially called to the whole subject at the time the statute was amended, by prohibiting one company from leasing or purchasing the road of another company, when their roads run on competing lines, the provision authorizing consolidation would have been amended in like manner, had there been a legislative intent not to thereafter permit companies whose lines compete from consolidating. The section in the Revised Statutes, authorizing consolidation, must be construed precisely as it would have been construed had the question arisen immediately after it took effect. The first act passed in Ohio, authorizing consolidation, was a special act empowering two companies whose lines of road were competing, to form themselves into a single company. See 1 Ohio Ry. Rep. 218-220. The general act authorizing consolidation was passed shortly after-wards. 2 Cowen, 1656. Whereupon the Toledo, Norwalk and Cleveland Railroad Company consolidated with the Junction Raiiroad Company, forming the Cleveland and Toledo Railroad Company. The lines of road of the constituent companies were, in every sense, competing. The agreement of consolidation was before this court in Port Clinton R. R. Co. v. Cl. Tol. R. R. Co., 13 Ohio St. 544. In the opinion, the court said, p. 546 : “ It may be inferred that to avoid the effect of rival routes, under different management, was an inducement to consolidation.” The validity of the consolidation was not questioned or doubted.
    II. Railroad companies in this state are authorized to consolidate themselves into a single company, althorigh their lines of road may be, in part, the leased or purchased lines of the consolidating companies: The power to consolidate was granted originally, in an enabling act, and by the very terms of the act, companies whose lines of road, or any portion of whose lines of road, have been so constructed as to admit the passage of cars over the roads continuously, without break or interruption, may consolidate. The phrase “ lines of road ” is in common use. It was obviously used, in this act, in its ordinary sense. The words must accordingly be taken in their common, natural, and broad sense. In common parlance, the “ lines of road ” of two railroad companies consist of all the roads which are actually and exclusively operated by them, whether they own such roads in fee simple, or partly in fee and partly by perpetual leases. And this is the correct, appropriate and exact meaning of the words. The “ lines of road ” of a single railroad company consist, of the roads over which it can and actually does rightfully exercise its franchises. The “ lines ” may be, and frequently are, formed by uniting the track or tracks built by one company with the track or tracks, or a portion of the track or tracks, built by a different company, and leased perpetually by the latter to the former company, and operated by it. When so united, the entire tracks constitute the “ lines of road ” of the company operating the same.
    If it had been enacted that ownership in fee simple absolute of the entire “ lines of road ” operated by several companies, should be a condition precedent to the exercise by them of the right to consolidate, the object of conferring the right at all, would, in a great measure, have been defeated; for such an essential prerequisite would have precluded companies from consolidating when their “ lines of road ” are, either in whole or in part, subject to deeds of mortgage. It is a notorious fact, that when the original act authorizing consolidation was passed, there was hardly one single railroad in this state that was not mortgaged for more than it was worthy or could have been sold for; and many of the companies had been compelled to forfeit the conditions of their mortgage deeds. The legislature was not' ignorant of these facts. Liability to forfeiture for non-payment of rent under a perpetual lease, does not render the portion of a company’s lines so held, not a portion of its lines of road in the sense of the act, any more than liability to forfeiture for non-payment of a company’s indebtedness, secured by mortgage deed upon a portion of its road, renders the same not a portion of its line of road in the sense of the act. Such mortgage deeds contain a clause authorizing the mortgagee to take possession of the property upon default in the payment of any installment of interest as well as in default of the payment of the principal. A mere change of form will not surely affect the right in such a case. Rut this objection is founded on the mere fact that there is a possibility that the title to a portion of the lines of road of the constituent companies may be forfeited for non-payment of rent. The ground of the objection is too unsubstantial and at the same time too far-reaching in its consequences, to be upheld. Why, even an estate in fee simple may be forfeited by non-payment of taxes or assessments. Every'railroad company in this state is empowered by statute to pledge, at any time, any or all of its property for the payment of its debts, and thus render it liable to forfeiture. Finally, a conclusive answer to this objection is, that for all substantial, practical purposes, a perpetual lease is a conveyance in fee. Black v. Canal Co., 22 N. J. Eq. 130, 403. This is emphatically true in Ohio. Hereunder our statutes and judicial decisions, permanent leasehold estates are lands, subject to all the rules and laws which attach to lands, for all purposes. Judgment liens attach to them as lands. They descend as lands. Loring v. Melendy, 11 Ohio, 355 ; Northern Bk. of Ky. v. Roosa, 13 Ohio, 334. That which is asserted, then, to be lacking as to the right and title to that portion of the lines of road between Springfield and Dayton, is not in substance, but in form merely. For all purposes of transportation—that is to say, for all purposes for which a railroad can be used—the Ohio Railway Company can exercise their franchises over that portion of their highway in the same manner and to the same extent as if they owned it, technically, in fee simple. Besides, the Cincinnati, Hamilton and Dayton Railroad Company own the road from Dayton to Toledo in fee simple. The road was constructed by the Dayton and Michigan Railroad Company. By an indenture between it and the first named company, the former granted to the latter, its successors and assigns, its railroad from Dayton to Toledo, to have and to hold the same to it, its successors and assigns, from and after May 1,1863, forever. Hence, inasmuch as one of the lines of road of the C., C., C. & I. Ry. Co. intersects at Sidney the line of road so granted, in fee simple, to the C., H. & D. R. R. Co., and these lines of road are so constructed at that place as to admit the passage of cars continuously, without break or interruption, the question as to whether a line of road composed in part of a road held by a perpetual lease, is a line of road, in the sense of the statute, is immaterial. Furthermore, if. a leased road is not a part of “ the lines of road ” of a railroad company, the objections urged against the right of these companies to consolidate, upon the alleged ground that their “ lines of road ” are competing, vanish ; for the reason that, under such a construction of the statute, the road which the C., C., C. & I. Ry. Co. holds, under perpetual lease, between Springfield and Dayton, and between Dayton and Ludlow’s Grove, does not form a portion of its line of road,” and consequently, neither of its “ lines of road ” compete with “ the line of road ” of the C., H. & D. R. Co., extending from Dayton to Toledo, that being, according to the same construction of the statute, the only “ line of road ” of that company. The words “ the lines of road of any railroad company,” are broad and comprehensive. They are neither preceded or followed by any other words which restrict their meaning. They include all lines of road which are covered by such general description. The same statute authorizes railroad companies to build and operate roads, to purchase and operate roads. Whether the title to the road be original or derivative—whether from original construction, or from purchase or perpetual lease—the road is aptly described as the road of the company so constructing, purchasing, or leasing it. Mahoney v. A. & St. L. Rd. Co., 63 Maine, 63; P., S. & R. Rd. Co. v. G. T. Ry. Co., 63 Maine, 90. To discriminate, further words of description must be used, such as “ leased lines,” “ purchased lines,” or “ chartered lines.” The words have no technical meaning. They are common words, ' and such laws arc framed so as to be understood by “ plain men.” The words clearly do not mean a line of road which the company constructed and once owned, but which it has sold or leased perpetually, and to which it has not the present possession or right. If it could be contended that it was properly described as “ the line of road ” of either company, it surely could not be maintained that it was not properly described as the line, of road of the company which actually and of right possesses and operates it under a conveyance in fee or perpetually. If the description would fit both companies, then either may consolidate. The construction contended for by the other side, that the phrase “lines of road ” means chartered lines only, would produce absurd and unjust consequences; one of which would be, that whenever a portion of “ the lines of road ” of any company had been acquired by purchase, such company would be thereby disqualified from consolidating with any other company. Such disability would be founded on a difference in the mere mode of acquiring title. Surely a mere change of form will not, with reference to such a matter, affect the right. Suppose the easement upon which the road-bed of a railroad is constructed, is held under a perpetual lease, as is sometimes the case, would that fact prevent the company which built the road from consolidating ? The lines of road of two or more railroad companies may run in different courses or directions, yet they may -be so constructed as to admit the passage of cars over them continuously, without break or interruption, and thereby accommodate different routes of travel and transportation. But the fact that a company has several nnited lines of road, does not prevent it from consolidating. The statute creates no such disability. There is no reason why it should have done so. The statute imposes only a single restriction, namely, that the lines of road, or some portion of them, must have been so constructed as to admit the passage of cars over the roads continuously, without break or interruption. If their tracks are so constructed, either at a common terminus of each road, or between the terrrwni of each road, the sole condition upon which the right arises, exists. In order to hold otherwise, it is necessary to annul tbe important clause of tbe statute in the words, “ or any portion of such lines.” If the intention had been to limit the right to companies having the same terminus, it would have been expressed in so many words. Nothing would have been more easy and simple than to have done so. Hence, the very fact that if this had been the object, it would have been expressed in language so clear that no human being could entertain a doubt about it, shows that such was not the object or intention. Hardcastle, Con. St. Law, 31, 2, and cases cited. The original act authorizing street railways to consolidate (S. & S. 135), and section 4809 Revised Statutes, authorizing the consolidation of turnpike companies, show plainly, that the legislative understanding of'the controlling words of this statute is what we claim the words mean. Again, if the object of this statute had been to limit, the right of domestic corporations to consolidate only when they have a common terminus, and when the several roads so united will form a single continuous line for the passage of cars, the intention would have been expressed as it is in section 3380, concerning the consolidation of domestic with foreign companies. If the same meaning had been intended, there would not have been such a difference in the language employed. Holt v. Lamb, 17 Ohio St. 386. Resides, the police and other regulations prescribed by statute in Ohio, in regard to the operation of railroads, are expressly directed to the companies having the management and control of the roads. Vide sections 3374, 3375, 3376, 3372, 3331, 3339, 3341, 3427, 3429, Rev. Sts. The sole criterion fixed from which to determine whether or not the forms of construction is such that the companies may consolidate, is the admissibility of the passage of cars. If the construction is such as to admit the passage of cars, all other particulars of construction are immaterial.
    III. The objections urged against the mode in which the right to consolidate was, in this instance, exercised, are untenable. It is objected that the agreement of consolidation does not prescribe the place of residence of the directors of the Ohio Railway Company. There are several answers to this objection.. To understand this matter, it is necessary to trace the legislation concerning directors of railroad corporations. The general corporation act of 1852 provided, section IX. (1 S. & C. 276), that there shall be seven directors of such a corporation, and contained no provision in regard to their residence. The general railroad act of 1847 was the same. The act of 1852 provided, section XXI. (1S. & C. 280), that on consolidation of railroad companies in this state, the directors, in their joint agreement, shall provide the number of the directors thereof, which shall not exceed thirteen. It said nothing of their residence. The first act authorizing consolidation, of 1851, was the same. December 15,1852 (1 S. & C. 322), it was enacted : “ That any railroad company heretofore incorporated or that may be' hereafter incorporated in this state, shall be and hereby is authorized, by a vote of a majority of the stock of such company, to increase the number of directors provided for in the charter of such company, to any number not greater than thirteen.” This remained in force until amended, January 14, 1875. May 1, 1854 (S. & G. 369), it was enacted: “ That a majority of the directors of each and every railroad company organized under the laws of this state, elected after the passage of this act, shall be residents of the state of Ohio.” This remained in force until repealed by the Revised Statutes. April 10, 1856 (1 S. & 0. 327), was first passed an act authorizing consolidation with railroads of adjoining states. It provided that the directors, in their joint .agreement, may prescribe “ the number of the directors and other officers thereof, and their places of residence.” March 10, 1857 (1 S. & 0. 310), section LXXXII. of the corporation act of 1852 was amended so as to read-: “All officers and a majority of the directors of any incorporated companies organized under the provisions of this act, other than manufacturing companies, shall be residents of this state.” This remained in force until repealed by the Revised Statutes. May 6, 1869 (66 Laws, 127), sections XXI., XXII., XXIII., of the corporation act of 1852, and which related, to the consolidation of railroad companies in this state, were repealed, and section I. of said act of 1856, relating to consolidation with railroads of adjoining states, was so amended as to include railroad companies in this state, and section II. of that act providing for the agreement was left unchanged. Its provisions then contained all the directions as to the mode of procedure in the consolidation of companies in this state as well as in the consolidation with railroads of adjoining states. March 30, 1877 (74 Laws, 71), these two sections were amended and repealed without any substantial alteration. They then remained in force until repealed by Revised Statutes, January 14, 1875 (72 Laws, 17), and which act provided for increasing or decreasing the number of directors of railroad companies. The general provisions of the Revised Statutes, relating to all corporations, are as follows :—Section 3248. “A majority of the directors must be citizens of this state.” Section 3267 provides for increasing or decreasing the number of directors within certain limits. The provisions of section 3294 of the Revised Statutes are applicable to railroads only. Section 3381, in relation to the joint agreement of the directors, now applies to consolidations of railroad companies, turnpike and plank-road companies, telegraph companies, mining and manufacturing companies. This legislation shows that the provision as to the agreement, prescribing, among other things, the places of residence of the directors of a consolidated company, was originally expressly confined to consolidations of a company in the state with a company of an adjoining state; and it found its way into the section as it now stands when the provisions of that section, which were originally in different acts, were amalgamated. This particular clause was evidently not intended to apply to such a consolidation as that under examination. So far as domestic corporations are concerned, there can be no good reason for any different provision as to the residence of the directors, in case the corporation is created by the consolidation of two or more domestic corporations, from that in case the corporation is originally created. If the joint agreement does not prescribe the places of residence, the general provision of the statute that “ a majority of the directors shall be citizens of this state,” will apply. It would probably govern, notwithstanding any express provision in that regai-d in the joint agreement. If the joint agreement had prescribed that a majority of the directors shall be citizens of this state, that would have been a sufficient compliance with the statute, as opposing counsel construe it. The law of the state forms a material part of every contract or agreement as fully as if it were set out in it. 1 Ohio, 358. In the absence of any exjoress provision in that regard the agreement should be read as though it contained the words, “ a majority of the directors shall be citizens of this state.” When the consolidation is of a company in this state with a corporation of another state, there is occasion and reason for a provision in regard to the residence of the directors of the new corporation so constituted. The statute should be restrained to the fitness of the subject-matter, and be construed reasonably. It is no way essential, or even expedient, in case of the eonsolidatiun of two domestic corporations into a single domestic corporation, that the joint agreement should prescribe the. residence of the directors. Neither the public nor third parties have any rightful claim that such power should be exercised. They have no interest in the matter and cannot be affected by it. The absence of such a stipulation is supplied by another part of the statute. If this clause were held to apply to agreements under section 3379, it would be treated not as fundamental, but as directory. The alleged omission in this agreement cannot, therefore, in any view, be held to vitiate it. The insertion of it cannot be held to be a condition precedent to the validity of the agreement. It is not a fundamental provision, essential to the existence or action of the new company. In view of section 3248, which requires a majority of the directors of every corporation in this state to be citizens thereof, the alleged omission is unimportant, if it applies to agreements to consolidate under section 3379 at all; for, by reason of section 3248 the agreement could not have prescribed that a majority of the directors should be citizens of other states. But even if the discretion were held to be unlimited, and not absolutely restrained by section 3248, in case the discretion be not exercised the provision of that section would 'apply, and the parties to the agreement must be held to have elected to be governed in this particular by that provision. There is a wTell established distinction between acts which are essential to corporate existence, and those which are regarded as not essential. It must be borne in mind that the act authorizing consolidation is an enabling act, and that one direction as to the mode or way in which the act enables something to be done may be as clearly directory as another may be regarded as mandatory. Whether we look theu to the history of the clause in question, or to the subject-matter, or consider the immateriality of the provision itself, in its relation to other provisions on the same subject, we think the conclusion is irresistible that it is what is called only directory, not imperative. Chamberlain v. P. & H. R. R. Co., 15 Ohio St. 250; Spring Valley Water Works v. San Francisco, 22 Cal. 434; Mead v. Keeler, 24 Barb. 20; Cross v. Pinkneyville Man. Co., 17 Ill. 54; Troy & Rutland R. R. Co. v. Kerr, 17 Barb. 581; Judah v. Am. L. S. Ins. Co., 4 Ind. 334; Liverpool Bank v. Turner, 30 L. J., Ch. 380. Such unsubstantial departures in methods as that alleged, do not injure the public, and therefore will be overlooked in quo warranto. Commonwealth v. C. P. Ry., 52 Penn. St. 506; People v. Kingston & Middleton Turnpike, 23 Wend. 193. The cases of M., C. & L. M. Rd. Co. v. Stout (26 Ohio St. 241), and The Same v. Pettis (Id. 259), recognize the doctrine that the rights, privileges, and franchises of a consolidated company are not new creations but are only such as the constituent companies possessed, and which passed into new conditions of existence which each assumed under the consolidation. This doctrine is expressly held in County of Scotland v. Thomas, 94 U. S. 683. Such a grant by the state does not require the same strict rule of construction that is applied where the state creates franchises, or originally grants rights. Black v. Delaware & Raritan Carnal Co., 22 N. J. Eq. 130. In view of the legislation of this state, and the action which has been taken under it during thirty years, great liberality should be exercised in regard to contracts for consolidation between different railroad companies. Dimppel v. O. & M. Ry. Co., 8 Reporter, 641. If the objections urged to prove that the consolidation in question is ultra vires and void, be sustained, every consolidation that has been effected in this state is ult/ra vires and void. The action which has been taken under this statute during the last thirty years, shows the understanding of all concerned, including most of the leading lawyers of the state, as to the meaning of the statute; and there is, under the circumstances, a deep presumption in favor of the correctness of this interpretation. If such practical and uniform construction is the true one, the objections made to the legal existence of the Ohio Railway Company are untenable. We further submit that, considering the nature and magnitude of the properties and interests involved in the consolidations which have been effected in this state, if the language of the statute were doubtful, and the intention obscurely expressed, this practical construction would now be held to be the genuine construction, and be followed and enforced by the courts; and this upon the established principle that evidence of contemporaneous, and even of uniform usage, may be received for the purpose of construing ancient statutes. Chesnut v. Shane's Lessee, 16 Ohio, 599; U. S. Bank v. Halstead, 10 Wheat. 51, 63.

      S. Burke, also for defendants:
    I. As to the point, “that competing lines cannot be consolidated,” it cannot be Claimed that section 3379 of the Revised Statutes, under which the consolidation was made, in' terms prohibits the consolidation of competing lines; nor can it be maintained that any statute of this state, in express terms, prohibits the consolidation of competing lines. Section 3379 is the only statute providing for the consolidation of railway lines in this state. The provisions of this section are clear, explicit and free from ambiguity, and when a statute is explicit, free and clear from ambiguity, it is the plain duty of the court to enforce it. My learned friend, the attorney-general, thinks you should add: “Provided such roads are not parallel or competing.” Allow me to ask: Is it the duty of the court, or of the legislature, to make the law? Is it within your power to prescribe the terms and conditions upon which railway companies may consolidate in this state, or is it within the power of the legislature? I maintain the doctrine that what the legislature has declared may be done, this court has no power to say that it shall not be done, upon the ground that what has been provided by the legislature to be done is considered by the court to conflict with its ideas of public policy. There is no question of public policy in the case. Section 3379 settles all such questions, and settles them conclusively. And see 34 Vermont, 149. The legislature speaks for the public, and declares its public policy, and this court, as the interpreter of its laws, is bound to enforce all its constitutional enactments. The intention of the legislature must first be ascertained, and this can best be done by reference to the act itself, considering its words and history. See Smith v. Smith, 13 Ohio St. 532. Eliminate from the case all other questions and suppose the consolidation to be unexceptionable in every other respect, and then consider whether the consolidation be void upon the ground that the lines are competing. A glance at the map will show the competing lines. The lines of the two companies are united according to the statutory requirements both at Dayton and Sidney. We will assume now, for the sake of argument, that these lines, instead of being held in part under a lease or deed, that they were all constructed by the respective companies, so that we may consider singly the question so ably urged by the attorney-general.
    1. Let us look at the language of the act in question. “When the lines of road of any two or more 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 company,” and then consider the history of legislation upon the subject. The first act on the subject is in 48 Ohio Laws, 316, entitled An act to incorporate the T. N. and C. R. R. Oo. Section 5 provides “ that said company shall be and is hereby authorized to connect with any other railroad company and to consolidate its capital stock with the capital stock of any such company.” January 20, 1851, the legislature passed another act, entitled: “ An act to amend the above act of incorporation,” and that act expressly provided (see section 12), for a consolidation of the Toledo, Nor-walk and Cleveland Railroad Company with the Junction Railroad Company. A glance at tlie map will show that the two lines in question thus specially authorized to be consolidated were directly competing lines running between Cleveland and Toledo, one by way of Sandusky and the other by the way of Norwalk. The only 'point at which they intersected was at Greytown, a point in the Black Swamp about eight ' miles east of Toledo. It would be difficult to have found then, or to find now, in the state two lines more directly parallel and competitive. The next act passed by the legislature of Ohio upon the subject was passed by the same legislature that specially authorized the consolidation of the roads last mentioned. See 49 Ohio Laws, 94. The act was passed March 3, 1851. The language of the act is in all essential particulars the same as the act now in force, and can it be maintained that the same legislature that passed a special law allowing two competing lines to consolidate, chiefly for the reason that they were competing lines, intended by its general law to allow lines only that were non-competing to consolidate % I think not. A consolidation finally was effected between the Toledo, Norwalk & Cleveland Railroad Company and the J unction Railroad Company on July 15, 1853. This consolidation, as appears by the articles of consolidation, was made under the charter and amendments of the respective consolidated roads and under the act of March 3, 1851. The contract of consolidation was reviewed by this court in Railroad Co. v. Railroad Company, 13 Ohio St. 544. This was the state of the law as recognized by the legislature and by the supreme court up to 1862. The first section of the consolidation act was amended in 1869 (66 Ohio Laws, 127). The language of the amendment in regard to all matters now under consideration is precisely the same as section 3379, Rev. Stat. and the act of March 3, 1851. Notwithstanding the attention of the legislature has been called to this act very many times within the last thirty years, it has not been considered necessary by it to so amend it as to prohibit the consolidation of competing lines. Up to the 4 th of last February, telegraph companies could consolidate upon the same terms and subject to the same pi-ovisions and limitations as railroad companies, but oh that day the act then in force in regard to the consolidation of telegraph companies was repealed, and it was enacted that “ telegraph companies whose lines are not parallel or competing, may be consolidated upon the same terms as railroad companies,” thus in express terms drawing a marked distinction upon the precise point in question between telegraph and railway companies. In view, then, of the legislation rtpon this subject, we say that competition is not an insuperable objection to the consolidation of railroad companies.
    II. It is urged, however, and with very great ability and plausibility, that lines of railroad connected by purchased or leased lines cannot be consolidated. The statute above cited makes no mention of the title by which a railroad company must hold its lines. The single condition preliminary to consolidation is : That the lines of road or some portion of such lines must be so constructed as to admit the passage of burden or passenger cars continuously over the two. This is the sole condition. Nothing is said about chartered lines, the ownership of lines, or title of lines. The words are few, clear and simple. There can be no doubt as to what the legislature meant by the expression, “ lines of road.” Manifestly reference is had to the superstructure, to the road-bed, the ties, the rails over which cars pass, along which they proceed without break or interruption from one line to the other. Reference is had to the physical condition, the material substantial superstructure along and over which the cars pass. At the outset of the debate upon this point, I wish to draw clearly the attention of the court to the, in my judgment, leading and controlling consideration. It is: that every railroad company in this state has, as a part of its franchises, in a sense, as a part of its property, the right, the lawful right, to consolidate whenever the conditions of union are such as the legislature has provided, with any other railroad company in the state. In other words, that the right of a railway corporation in Ohio to consolidate is a part of its franchises, a part of its property, something that belongs to it by reason of the grants, and in substance the conveyance is a deed. The language of the grant is: “ To have and to hold to the said Cincinnati, Hamilton and Dayton Railroad Company, its successors and assigns forever.” This court, in Rattle v. Burt, 31 Ohio St. 116, held, that an act passed March 25,1870, entitled, An act to authorize manufacturing corporations to issue preferred stock, -was, in reality, an act authorizing such corporations to borrow money, and that the preferred stock so called and provided for ■in said act was a mere obligation to pay money, and, when secured by mortgage, that the holders thereof were entitled to payment in preference to the ordinary creditors of the company. And further said that the substance of the act and agreement must be regarded, and not the name by which it was called. And so we say, in regard to the lease of the Dayton & Michigan Railroad Company, that although in terms it is a lease, it is a perpetual lease, or grant, or deed, having the same effect as if it were called a deed, instead of a lease; and hence, that the title of the C., II. & D. R. R. Co. to that property 2s by that instrument made as permanent as it is possible to make it by any form of conveyance whatever, and the connection bfetween the two roads, as shown by the agreed statement of facts, and in truth and fact, is precisely such connection, and its lines are so constructed as to cover the precise requirement of the statute. In regard to the Springfield line and its connection at Dayton, it is sufficient to say that the estate there granted is an estate which has been recognized by the legislature of this state (see S. & C. 505), and by the supreme court (13 Ohio, 335 ; 11 Ohio, 355), as being of the same permanent character as estates held by deed. It has been urged here with great zeal and ability that the conditions of the lease may not be complied with, and the lease may become forfeited. I take it that this court will not predicate its decision upon the supposition that a contract may not be kept, but rather upon the presumption, if that element must enter into the consideration, that it will be kept and maintained.
    III. Another objection under this head is, that the agreement does not state the residence of the directors. It is true the contract does not, in terms, state the residence of the directors, nor .in my judgment is it possible to do so with certainty until, an election occurs. The stockholders have a right to choose their directors, and I submit that no agreement made between the directors, even when ratified by the stockholders, could deprive them-of the right to choose such directors as they see fit, provided the persons chosen were competent to act under the statutes of -the state. Section 3381 is clearly a directory and an enabling act. In substance, it confers upon the directors of the respective companies to be consolidated, the power to agree upon the terms of consolidation and the means of carrying it into effect according to their judgment and discretion, so that they violate no law of the state. Neither in its phraseology nor in its subject-matter can this statute be regarded as mandatory, so that all of its requirements shall be technically complied with. Its language is enabling and permissive: “The directors of the several corporations may enter into a joint agreement under the corporate seal of each company for the consolidation of said companies, and prescribe the terms and conditions thereof.” What terms and conditions? Manifestly such terms and conditions as the parties are able to agree upon. “ The mode of 'carrying the same into effect.” What mode? Manifestly such mode as meets the judgment of the contracting parties. “ The name of the new corporation, the number of the directors, and other officers thereof, and their place of residence, the number of shares of the capital stock and the amount of each share, and the manner of converting the capital stock of each of said companies into that of the new corporation, with such other details as they shall deem necessary to perfect such new organization and the consolidation of said companies.” Manifestly, this statute is simply enabling and directory. The recording act above referred to, both in its terms and subject-matter, is much nearer mandatory than the act under consideration. The following are a few of the cases in which statutes have been held to be directory: Thompson v. State, 26 Ark. 323 ; State v. Carney, 20 Iowa, 82; Taylor v. Taylor, 10 Minn. 107; Fry v. Booth, 19 Ohio St. 25; 47 N. Y. 556 ; Bowers v. Sonoma Co., 32 Cal. 66; 58 Barb. 174; People v. Allen, 6 Wend. ; 5 Cow. 269 ; 9 Johns. 147; People v. Peck, 11 Wend. 604; 3 Mass. 230; 24 Pick. 75; 2 Denio, 160; 20 Barb. 165; People
      v. Holley, 12 Wend. 481; 19 Barb. 540; 7 Hill, 9; 9 Wend. 143; 14 Barb. 259 ; 4 Seld. 88; 15 Ohio St. 573; Sedgwick on Con. Stats. 325.

      John J. Glidden, also for defendants:
    I. As to the objection that the places of residence of the directors are not stated in the agreement for consolidation. The statute authorizing consolidation is not an act conferring any special privilege not granted citizens generally. It does not delegate any of the prerogatives of the state. Citizens generally have the right to amalgamate or consolidate their several businesses at will. The only franchises which the consolidated company obtains are those heretofore granted by the state to the several corporations consolidating. There is no new grant. It operates to restrict the grant by decreasing the number of corporate bodies authorized to exercise the franchises. The statute, therefore, contains none of the elements upon which the rule of a strict construction against the grant is founded, and therefore the rule has no application. Pierce on R. R. 492; Black v. Del. & R. Canal Co., 7 C. E. Green, 130, 402; 9 C. E. Green, 455. There is nothing in the character of the power to consolidate which would prevent corporations exercising it at will, in common with natural persons and without 'statutory authority. If this act was construed to be mandatory and applied to railroad companies within the state, then the places of residence of the directors would mean their various places of residence within the state, the particular city, town or hamlet, and it would involve an absurdity—or an impracticability. At that time no board of directors had been or could have been elected. Railroad Co. v. Brown, 26 Ohio St. 223.
    II. As to the objection that the lines of road were competitive. Companies operating lines of road which are competitive, do not for that'reason cease to be “railroad companies within this state.” It is admitted that both these companies were railroad companies within this state. The statute says, “ any railroad company within this state,” whose lines, &c., “ may consolidate,” &c. The statute in this regard will admit of no construction. All railroad companies in this state, the lines of road of which are constructed as stipulated in the statute, arc, in terms as clear and strong as language can make them, authorized to consolidate. The statute in the breadth of its language includes all railroad companies, competitive as well as others, within this state. What the relator seeks to do is by construction to import into the statute words which are not to be found there, to wit: “ provided the said companies are not competitive.” This is not admissible. Sedgwick on Stat. & Con. Law, 194, 205, 207, 208, et seq.; 4 Ohio St. 383; 11 Ohio St. 232; 2 Ohio, 395; Brower v. Hunt, 18 Ohio St. 341. I presume, however, that it will be urged, that the lines of road of competitive companies cannot be so constructed as to admit the passage of cars over any two or more of them continuously, without break or interruption, as this language is used in this act. I presume the words are used in this act in their ordinary well understood sense, and the agreed statement of facts furnishes the physical fact accomplished by the lines of road of these two railroad companies, as an answer to their theoretical reasoning that it cannot be done. If, however, it is contended that the legislature has used the word “ continuous ” in an obscure or equivocal sense, requiring construction, then apply the rule given by Sedgwick, p. 234. The history of the legislation on this subject clearly shows that competitive lines may consolidate.
    III. As to the effect of a portion of the line of one of the roads being held under a lease. To each and all the railroad companies in this state is granted the franchise to consolidate with other companies when the lines of the consolidating companies are constructed as provided in the statute. This is frequently a very valuable franchise, for it very frequently happens that lines of road that are not paying operating expenses, and are practically valueless, become, as the result of consolidation with a through line, dividend-paying roads, and very valuable property. Query: When a road is perpetually leased, to which company does this valuable franchise belong, the lessor or the lessee company ? Surely the lessor could not exercise it. 65 Pa. St. 209. The general railroad law of the state, together with the special privileges theretofore granted, not inconsistent therewith, was the charter of each and both of the late corporations now merged by consolidation into The Ohio Railway Company. By that charter each was authorized to acquire its “ lines of road,” either by construction, purchase or lease, or by the three modes combined, and was also, by its charter, authorized to consolidate with any other railroad company within this state, whenever its “ lines of road ” so obtained, or any portion thereof, are constructed as provided in the statute ; and it is no concern of the state by which one of the several modes provided by the charter, a railroad company has acquired any portion or all its “ lines of road.” It is all-sufficient so far as the state is concerned that the railroad company holds its “lines of road,” or the various component parts of its line of road, by any tenure authorized by its charter. And would it not be a strained construction to hold that the legislature meant by the term “lines of road,” when used in the consolidation statute, anything less than all the lines of road which the law authorized the railroad company to acquire ? If the legislature had meant less than this, would not apt and appropriate restrictive language have been used to make that meaning plain? The statute authorizing railroad companies to consolidate, in its present form, with but slight immaterial changes, has been in force in Ohio for more than thirty years. There is a stare deeisis applicable to a construction, the result of a settled, long accepted, uniform interpretation of a statute, upon which the bar of the state and the people generally, by their advice, have acted, and created vast and varied property interests, as well as to constructions by judicial decision. 1 Ohio, 12; 3 Ohio, 555; 16 Ohio St. 407. The stockholders of these two consolidated companies have acted in this consolidation upon the faith of the correctness of that long accepted and continuously acted upon interpretation of this statute, and under it have taken such action in consummation of this consolidation as that an adjudication by this court, now annulling this consolidation, would effect the result of great pecuniary loss and damage, the character of the property being such as that it does not admit of transitions, changes as to its legal status, jgru and
      con, without seriously impairing the marketable value of the stock, which is the representative of the property.

      R. P. Ranney, also for the defendant, made an oral argument, and W. B. Sanders was also of counsel for defendant.
   Okey, C. J.

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

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

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

The Cleveland, Columbus, Cincinnati and Indianapolis Railway Company is a corporation, with a line of railroad extending in a south-west direction from Cleveland, in Cuyahoga county, to Springfield, in Clark county, a distance of one hundred and sixty-three miles ; and the Cincinnati, Hamilton and Dayton Railroad Company is a corporation, with a line of railroad extending from Cincinnati, in Hamilton county, via Hamilton, in Butler county, to Dayton, in Montgomery county, Dayton being in a direction east of north from Cincinnati, and distant therefrom sixty miles. The authority to make the alleged consolidation is based by the defendants on section 3379 of the Revised Statutes, which is as follows: “ "When the lines of road of auy 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 company.”

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

As each of the consolidating companies is possessed of such leased lines, by means of which it is said such connection is made, the importance of this contention of the defendants is manifest, and hence it is proper to state more definitely the condition and situation of the several roads affected by this controversy.

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

Tbe Cincinnati and Springfield Railway Company is a corporation with a line of railroad extending from a point near Cincinnati to Dayton. It also has, by lease from tbe Cincinnati, Sandusky and Cleveland Railroad Company, a line of railroad extending from Springfield to Dayton. These two lines do not directly connect at Dayton, but by arrangement between tbe Cincinnati and Springfield Railway and other railroad companies, a connection is made between tbe two roads, by means of a road used in common by several railroad companies. In 1871 tbe Cincinnati and Springfield Railway Company (party of tbe first part), the’ Cleveland, Columbus, Cincinnati and Indianapolis Railway- Company (party of tbe second part), and tbe-Lake Shore and Michigan Southern Railway Company (party of tbe third part) executed an instrument in writing, called by tbe defendants a conveyance of tbe fee, or at least a perpetual lease, to tbe party of tbe second part, and by tbe relator called a running arrangement between tbe parties, which instrument contains numerous stipulations with reference to tbe construction of tbe line between Cincinnati and Dayton, tbe division of tbe earnings, and other matters, and by force of which agreement, tbe Cleveland, Columbus, Cincinnati and Indianapobs Railway Company acquired the right to run its cars from tbe terminus of its road in Springfield to Cincinnati, via Dayton; and cars of that company pass regularly over tkp roads stated, without break or interruption, from Cleveland to Cincinnati, a distance of two hundred and forty-three miles.

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

“ Nothing herein contained shall operate to grant and demise, or be construed to include tbe franchises to be a corporation granted to tbe party of tbe first part by the state of Ohio, or any other right, privilege, or franchise which is, or may be necessary to preserve the corporate existence or organization of the party of the first part, and all the said franchises to be a corporation, and all the rights, privileges, and franchises last aforesaid arc reserved and excepted from these presents. And said party of the first part further covenants and agrees, that upon the written request of said second party, its successors or assigns, it will appropriate, under the laws of the state of Ohio, such real estate, rights, and interests as shall be required for the maintenance and operation of said railway; and the costs and damages thereof shall be paid by the party of the first part.”
“ At the end of ten years from the delivery of possession of said Cincinnati and Springfield Railway Company’s railway to the said party of the second part, the railway and appurtenances of the said party of the second part shall be consolidated with the railway and appurtenances of the said party of the first part, in case the laws of Ohio shall then permit and authorize such consolidation to be made, and said consolidation shall be made upon the basis of the proportionate values of the respective railways and appurtenances of said first and second parties, as the same shall appear by the net earnings of each for the three years next preceding the time of such consolidation.”
“The intent and purpose of this indenture is to form and construct a shorter and continuous railway between Buffalo, New York, and Cincinnati, Okioj of uniform gauge, for the transportation of persons and property between the last named cities and places beyond each, and to promote the interests of the public and the parties hereto.”

The lessor companies have at all times maintained their organizations.

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

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

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

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

. The Cincinnati, Hamilton and Dayton Railroad Company also controls and ojaorates the following lines of railroad under leases, that is, the Cincinnati, Richmond and Chicago Railway, extending from Hamilton to Richmond, Indiana, and the Cincinnati, Hamilton and Indianapolis Railway, extending from Hamilton to Indianapolis.

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

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

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

The Cleveland, Columbus, Cincinnati and Indianapolis Railway Company and the Cincinnati, Hamilton and Dayton Railroad Company were each subject to all the restrictions and conditions prescribed in the act of 1848, “regulating railroad companies ” (2 Curwen, 1394), and the amendments thereto, and are subject to the restrictions and conditions of all general laws of the state relating to railroads and railroad companies. The act of 1848 provided, by section two, as follows: “Said corpoi’ation shall be authorized to construct and maintain a railroad, with a single or double track, with such side tracks, turn-outs, offices, and depots as they may deem necessary, between the points named in the special act incorporating the same, commencing at or within, and extending to or into any town, city, or village named as the place of beginning or terminus of such road, and construct branches from the main line to other towns or places within the limits of any county through which said road may pass.”

Previous to 1851 special provision was made in the charters of certain railroad companies for consolidation with other specified companies, but there was no general law upon the subject. The act of 1851, “relating to railroad companies” (2 Curwen, 1056), provided as follows: “Whenever the lines of railroad of any railroad companies in this state, or any portion of such lines, have been or may be constructed so as to admit the passage of burden or passenger cars over any two or more of such roads continuously, without break or interruption, such companies are hereby authorized to consolidate themselves into a single corporation.” This evidently is to be understood as referring to the line of each road, but the word is made plural in form, for the reason that the two companies are referred to in the same form. And. it was required, furthermore, by that act, that the agreement between the dix-ectoi’s of the consolidating companies should specify, among other things, “ the manner of converting the shares of capital stock, in each of said two or more corporations, into shares in such new corporation (and) the manner of compensating stockholders, in each of said two or more corporations, who refuse to convert their stock into the stock of such new corporation..... Provided, that all stockholders, in either of such corporations, who shall refuse to convert their stock into the stock of such new corporation, shall be paid at least par value for each of the shares so held by them, if they shall so require, previous to the consolidation being'consummated.” And it was further provided, in effect that when such consolidation was effected, the consolidating companies should cease to exist, and “ all and singular their rights and interests, in and to every species of property, real, personal, and mixed, and things in action, shall [should] be deemed to be transferred to and vested in such new corporation, without any other deed or transfer.”

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

By force of such lease, the right to the use of the road passed from the lessor to the lessee, according to such terms and conditions with x-espect to the use as are proper in a lease; but nothing else passed. “The lessee is the assignee for a term or pexdod of the lessor-—his bailiff, to hold possession for him.” Penn. R. Co. v. Sly, 65 Pa. St. 205. The power to lease does not imply a power to consolidate, nor does the power to consolidate imply a power to lease, but these powers ax-e distinct and independent. This was true under the earliest legislation on the subject, and it is true under the present legislation. While, in case of consolidation, the x-ights of the lessee pass to the new company, nothing else ¡xasses; arxd the lessor retains, unimpaired, its corporate existence, powers and privileges, except as affected by the agreement for such use; and hence, among the powers so retained by the lessor, is the power of consolidation.. Clearly, in our opinion, there can be no consolidation unless the companies whose lines form the connection are consolidated. But here it is ¡Jain that the connection is formed and only exists by the lines of the lessors, and that as to the lessor companies there is no consolidation. Evidently this is in accordance with the view of the statute taken by the parties when the lease to the Cleveland, Columbus, Cincinnati, and Indianapolis Railway was executed, as will appear from the extracts from that instrument already set forth. Moreover, the statute, which makes ample provision for the protection of stockholders of the consolidating companies, makes none for the protection of stockholders of the lessor companies. Plainly, as it seems to us, there is no consolidation of the lessor companies; and it is equally clear that the right to consolidate, based on the consolidating companies’ ownership of the leased roads, is wholly untenable. True, under the former as under the present statute, the power to consolidate may, in general, have been in abeyance in the lessor company; but it was the lessor’s voluntary act, if its power in this respect was suspended; and it is equally true that upon the termination of the lease for any cause, the power to consolidate would revive with all its force.

Suggestion is made that the danger of defeating the consolidation by non-payment of rent, or the like, and consequent forfeiture of the lease, is not greater than the danger arising from the foreclosure of a mortgage, which practically might have the same effect as such forfeiture. If we admit this to be true, it does not militate against the construction we have given to the statute. The real question is as to the meaning of the words of the statute, “lines of road.” A mortgage, being clothed with the legal title, may, after condition broken, recover and hold possession, though in Harkrader v. Leiby (4 Ohio St. 602, 612), the judge delivering the opinion properly said that “ a mortgage is now treated in both courts (law and equity) as a mere security for the debt, and the mortgagee is permitted to nse the legal title only for the purpose of making effectual such security.” But the title of a lessee is very different and the road so leased to it is not its line of road, in. the sense of the statute, but the road of the lessor company. Indeed, if we are permitted to depart from the plain words of the statute, and determine that where the control of a railroad by another company is permanent in its character, such ownership is sufficient to satisfy the requirement, it is difficult to see why a company having no other than leased lines, or one having a permanent running arrangement with another, may not come within the provision. I am fully persuaded that nothing of the sort was contemplated by the legislature.

I have so far spoken in the main of the proper construction of the acts of 1848 and 1851. But, although certain changes have been introduced into the subsequent acts (3 Curwen, 1882, 1884; 3 Sayler, 1760, 1872; 4 Sayler, 2950; Rev. Stats, §§ 3300, 3379), there is nothing in any of them leading to an]' other conclusion in this respect than the one stated. Indeed, it is a well settled principle that wlxex’e a statute has undergone revision, it should be construed as before, unless the new ad plainly requix-es a change in the construction. Applicatior > has been given to this principle in cases where the change was very marked. Williams v. The State, 35 Ohio St. 174. And it is also a well settled rule that, it being of the very essence of a law that it be uniform and unchangeable, whatever was the meaning of a statute when first enacted, shoxxld be its meaning through all future time. Reed v. Evans, 17 Ohio, 128, 134. This, of course, is to be taken with the qualification that such statute, though unchanged in its language, may be modified or eoixtrolled in its operation by a subsequent statute. Slater v. Game, 3 Ohio St. 80. But there is nothing in the present statutes requiring any different construction, in the particular under consideration, than should have been placed on the former acts.

In bolding that lines held by lease áre not within the provisions as to consolidation found in section 3379, we give expression to that which seems to be the plain construction of our statute. This position, in my opinion, is impregnable. But if we regarded the question as doubtful, the result should be the saxne; for it is a principle perfectly well settled, that where a statute granting corporate power admits of two probable but conflicting constructions, that construction should be given to .it which is least favorable to the existence of the power. In no case is this principle more distinctly asserted than in Straus v. Eagle Ins. Co., 5 Ohio St. 59.

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

But there is another view of this case to which I assent, and that view leads to the same result. It is in respect to the situation of these roads, and the relation they bear to each other, without special reference to the title by which they are held ; and this presents a question of mixed law and fact. It is admitted in the agreed statement, “that for many years last past, a very large commerce has existed between the portions of the United States lying southerly, south-easterly, and southwesterly of Cincinnati, on the one hand, and the regions conveniently reached by the commerce of Lake Erie, and of the great lakes connected therewith, on the other hand. That the course of this commerce has been such that goods, wares, and merchandise in large amounts have been brought to the city of Cincinnati by the transportation lines upon the Ohio river, and by the railroad lines converging at Cincinnati, and the same has been transported by the railroads running through the state of Ohio to points upon Lake Erie, and thence transported by the way of the lakes, and the railroads running from cities upon the lakes, to the Atlantic seaboard and the northwestern states. That owing to the great competition existing between the transportation lines upon Lake Erie, the rates of transportation of merchandise from either Cleveland, San-dusky, or Toledo to points upon the said great lakes, except Lake Erie, either easterly or westerly, from the said cities, have been generally the same to any one of such points, notwithstanding the difference as to distance in favor of either of the said cities; so that merchandise going from either of said cities through the said lakes, and destined to any point, either upon the Atlantic seaboard or in the north-western states, or any intermediate point east of and including Buffalo, generally paid the same rates for transportation upon the lakes, whether they were shipped from either Cleveland, Sandusky, or Toledo. That previous to the 8th day of July, 1881, there was an active competition between the aforesaid Cleveland, Columbus, Cincinnati and Indianapolis Railway Company and the aforesaid Cincinnati, Hamilton and Dayton Railroad Company in respect to the said transportation business from Cincinnati to points upon Lake Erie, and great rivalry existed as to the obtaining and conducting of -such transportation business. That the said railroad companies respectively connected the said (Sty of Cincinnati with the ports of Cleveland and Toledo on Lake Erie.”

The Cleveland, Columbus, Cincinnati and Indianapolis Railway and the Cincinnati, Hamilton and Dayton Railroad, with their leased lines, constitute two great arteries of trade, both commencing on the Ohio river at Cincinnati, meeting at Dayton, and extending thence to Lake Erie, one terminating at Cleveland and the other at Toledo. The attorney-general says, and the record supports the statement, that these roads are “ for sixty miles lying parallel and near to each other.” That they are, indeed, in the largest sense, parallel and competing roads, seems to be beyond dispute, and it may be fairly inferred from the record that a leading object in making tire consolidation was to destroy that competition. That being true, the lines of these roads are not, in my judgment, “ so constructed as to admit the passage of burden or passenger cars over two <©r more of such roads contmuousk/,” within the proper meaning of section 8379. That the mere physical ability to pass cars from one road to the other satisfies the statute, is a.construction of it which is wholly inadmissible, for the provision requiring such connection would be without meaning. In imposing that restriction upon consolidation, the legislature intended, not merely that the physical fact should exist, but that such consolidation should only be made for the very purpose of passing freight and passengers over both lines, or some material parts thereof, not necessarily in a direct or straight line, but continuously.

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

Having regard to the language of this statute, in the light of such aids as are here indicated, I am satisfied the legislature never intended that railroads situated as these are should be regarded as constructed for the carriage of freight and passengers continuously, in the manner contemplated by the section. Indeed, each of these consolidating companies had a line for the carriage of freight and passengers from Cincinnati to Lake Erie, “ continuously, without break or interruption,” and the policy of the country in general, indicated in constitutional and statutory provisions, has long been opposed to the consolidation of roads bearing such relation to each other, and this strengthens the belief that these companies are not within the section in qirestion. Consolidation for the transportation of freight and passengers continuously, is a thing which the legislature might well desire to encourage, as it may be advantageous alike to the public and the companies ; but corporations have power only as granted by the general assembly; and where companies situated as these are, being parallel and competing, claim that authority to consolidate has been granted to them, they must be able to point to words in the statute which admit of no other reasonable construction, for.it will not be assumed that the law-making power has authorized the creation of a monopoly so detrimental to the public interest. But the statute contains no such words.

An examination of the provisions relating to the power of railroad companies to lease, does not lead us to a different conclusion. True, by the act of 1851, it was not provided in express words that the fact that the lines of two eompan es wore parallel and competing should be a bar to a lease by one to the other or to a consolidation of the companies ; nor was there any such express provision in the act of 1852 (3 Curwen, 1884), or the act of 1869 (3 Sayler, 1760), with respect to leasing. Express provision, however, prohibiting one company from leasing to another where their lines were competing, was made by the act of 1873 (4 Sayler, 2950), and that provision was carried into the Rev. Stats. § 3300. From the absence of any such express prohibition with respect to consolidation, it is argued that here is a legislative expression that the fact that lines are competing is no objection to consolidation. But that conclusion, in my judgment, is altogether erroneous. By the act of 1852 (3 Curwen, 1877), consolidation was provided for in section 21, and leasing in section 24. When section 24 was repealed and re-enacted with certain changes in 1869, it was left, in the respect mentioned, unchanged, and such prohibition was introduced, as we have seen, in 1873, when the section was again amended. Perhaps this latter amendment wTas introduced by reason of some abuse which had no direct relation to consolidation, and hence the propriety of amending the section on that subject was not considered. But, however this may be, it does not follow that such change in the language of the act worked any radical change in the law. The presumption, as we have seen, is the other way, where the purpose to require a cliauge in the construction is not clear. Notwithstanding the act of 1873, the question still is as to the fair interpretation of the section relating to consolidation previous to that time, which section is still in force in substantially the same form. Rev. Stats. § 3379. .That it does not authorize a consolidation of lines bearing to each other the relation borne by these roads, is a proposition to which I fully assent.

Entertaining these views, tire question how far this consolidation may be affected by-the clause in the act of 1873, incorporated into section 3300 of the Revised Statutes, is not with me a vital one. But the policy of the state, as declared in that enactment, cannot be in doubt. Since 1873, at least, there can be no lease where the lines of the lessor and lessee are competing, and it is admitted that if there can be no lease, there can be no consolidation of such lines leased since then. The rule upon the subject may be more rigid since 1873 than it was under the former legislation. I do not think it is necessary to determine how that was, nor is it necessary to express any further opinion upon the question how far section 3300 might be regarded in determining this cause.

A fatal defect in the organization of this company is found in the fact that under Rev. Stats. § 3381, the directors of the consolidating companies must set forth in their joint agreement the places of residence of the new directors, as well as their number. This provision of the statute has not been complied with. There is no designation of any such place of residence. We are not to speculate as to the propriety of this provision, nor as to. the manner it became incorporated into the statutes in its present form. It is sufficient to say the provision is in no sense directory, and that a compliance with it is indispensable. Atlantic, &c., R. Co. v. Sullivant, 5 Ohio St. 276 ; The State v. Lee, 21 Ohio St. 662; Raccoon, &c., Co. v. Eagle, The State v. Cen. O. Association, 29 Ohio St. 238, 399; People v. Chambers, 42 California, 201.

The discussion by counsel has taken a wide range, and many additional reasons have been suggested in support Of the views here stated; but let what is written suffice.

Judgment of ouster.

White and McIlvaine, JJ., concur in the judgment on the grounds stated in the first proposition. As to the second, as applied to the case, they express no opinion. They also concur in the third proposition.

Johnson and Longworth, JJ., concur in the judgment, on the grounds stated in the second and third propositions, but do not concur in the first. They prepared the following separate opinions:

Johnson, J.

In my opinion, section 3379 of the Revised Statutes should be construed so as to hold:

A railroad company, having the exclusive right to manage, control, and operate a line of railroad in perpetuity, whether such right is acquired by having constructed, purchased, or permanently leased the same or part thereof, may consolidate the same with another line when the two lines are so constructed as to admit the passage of burden or passenger cars over both of said lines, continuously, without break of in terruption.

But if such lines are, in their general features, parallel and competing, they are not corvbmuous within the true intent and meaning of section 3379 of the Revised Statutes, and hence cannot be consolidated.

The facts of this case show that the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company owned a line of railroad from Cleveland to Springfield, and had acquired by contracts or leases, the right, in perpetuity, to manage and operate a railroad from Springfield, via Dayton, to Cincinnati. The line thus acquired was an extension of the line it owned, and the two together constituted one continuous line from Cleveland to Cincinnati, and was in legal effect an extension of the Cleveland, Columbus, Cincinnati and Indianapolis Railroad.

The Cincinnati, Hamilton and Dayton Railroad owned a lino from Cincinnati to Dayton, and had, by contract, acquired a like right to the railroad from Dayton to Toledo. This constituted a continuous line, under the perpetual management and control of the Cincinnati, Hamilton and Dayton Company from Cincinnati to Toledo, and in legal effect was an extension of the line of the Cincinnati, Hamilton and Dayton road to Toledo. Each new line had for its terminus on the Ohio river the city of Cincinnati, and on Lake Erie one had Cleveland, the other Toledo. At the southern terminus, and to Dayton, they were parallel, and competing for all freight and passengers to Lake Erie. At Toledo and Cleveland they were competitors for business to Dayton and Cincinnati. Neither of these lines is, as to the other, a continuing line. By a consolidation they do not constitute one continuous line, but two parallel and competing lines.

If these lines can be consolidated, the new or consolidated company does not then have one continuous line, but two lines, parallel in their general features, neither of which, as the other, is a continuous line, nor is either as to the other ««c* extension.

The intent of this section of the statute is, to authorize a consolidation when the lines are so constructed as to admit the passage of burden or passenger cars over two or more of them continuously, i. e., the two lines so consolidated will, each as to the other, be an extension, - and provide for continuous transit under a single management and control, thus affording to the public greater facilities for travel and business, “ without bréale or interruption,” and greater unity and economy of management. Continuity of transit and efficiency, responsibility and economy in the transaction of business, under a singk, management, are the objects to be accomplished. Consolidation, which thus promotes the convenience of the public, is for the public benefit and is authorized, while that which does not provide for continuity of transit without break or interruption, but combines parallel and competing lines, creates a monopoly, which is against the public policy of the state.

The statute is addressed to corporations having the capacity to accomplish the main object, the continuous transit, without break or interruption.

The lessor company of a given line has neither capacity nor power to do this. It has, by a lease or contract of a permanent nature, divested itself of any power to furnish such transportation.

The franchise to maintain and operate a railroad over the leased line passed, with the tangible property, to the lessee company. It alone can furnish the desired transportation.

The franchise or power to consolidate must exist in the corporation having such lines as may be united, so as to furnish that continuity of transportation which it was the purpose of the statute to provide for. A lessor company could not do this. A lessee company, having absolute control, during the life of the lessor company, can fully accoinplish this object, and I see no reason why it may not consolidate when this continuity of transit will be provided, which was the primary object of the statute.

Longworth, J.

I concur with my brethren that judgment of ouster should be rendered, but not upon the ground set forth in the first paragraph of the syllabus; and I agree with the opinion of Judge Johnson. I only desire to add one consideration to what has been said by him.

• In construing a statute it is always well to consider the object to be attained by legislation. In this case it is evident that the object (or at least one object), was to enable trains of cars to pass continuously, without break or interruption, over the lines of road of the companies desiring to become consolidated. As the lessee companies actually operate the roads, of which they alone have possession and control, they must certainly be the owners of such lines within the contemplation of section 3379. A consolidation Of lessor companies could accomplish no conceivable practical result, seeing that they do not operate the roads, and never can, at least while the leases are in force. This drives me to the conclusion that the lines of road of any railroad companies” mentioned in the statute, refer to lines held under perpetual lease, where the lessee has sole possession and control of their operation, as well as to lines held and owned by title in fee simple. I concede that the title must exist in perpetuity, since the consolidated corporation will, in contemplation of law, endure forever.

This being true, it follows that the lines of road ” in question extend from Cincinnati to Cleveland and Toledo, respectively ; that they are competing, and in their general features parallel; and their consolidation is open to the objections so well announced and discussed in the opinion of the Chief Justice and of Judge Johnson.