Omaha daily bee., 1888-04-27

shall theroupo become vested with oil the
property, rights, privileges and franchises Of
the company making such sale, and pertain
ing 10 the said railroad so sold, and shall be
authorized 10 locate, construct and complete,
maintain and operate the railroad thus pur-
chased, and may receive, hold and convey all
municipal aid, endowments and property of
any kind whatsoever upon complying with
the terms and conditions upon which the
same were TO be had, as fully and TO the same
extent as the railroad company making such
sale could have done had no such sale been
made.n
This act was passed in 1881, and the section
only applies TO corporations Of an adjoining
state which shall have extended its railroad
into this state and become acorporation under
the laws thereof, TO mortgage, lease or sell
that part OF its railroad situated within this
state TO a railroad company within the state.
This section does not repeal sections 80 and
81 Of chapter TO OF the compiled statutes.
Nor does IL authorize railway to lease its
entire line that out OF the state as well as
that within. That statute, therefore, does
not apply TO nor aid this case.
So far as the power 10 lease is concerned,
requiring the lines TO be continuous, chapter
50 OF the session Laws Of 1887 contain provis-
ions as 10 the power 10 purchase or lease
railways, which need not be noticed, as IL has
no application to the case at bar. The second
section of the act contains provision for
the ratification of prior leases and CON
solidations which, at the most, can
only legalize acts done in good faith where
there was want Of full power to perform
the same, but does not apply to cases where
leases were made, or consultations effected
against the inhibitations of the statute. The
lease Of the defendant, therefore, is not vail
dated or aided by that statute. To justify
the defendant in leasing its line to the B. & M.
railroad company, IL must be able to point TO
the exact statute granting such authority,
which II has failed to do. Penn Co. VS. st.
Louis, Alton & w. Railroad, 118 u. S., 294)
In the opinion of the majority of the court
in that case, 1t Is said: "We think 1t may be
stated as the just result of these cases, and
on sound principle, that unless specially
authorized by its charter, or aided by some
other legislative action, railroad company
cannot, by lease or any other contract, turn
over to another company for long period of
time, its road and all its appurtenances the
use Of its franchises and the exercise Of its
powers. Nor can any other railroad COM
pany without similar authority make
contract to receive and oper-
ate such road, franchises, and property
of the first corporation; and that such a
contract Is not among the ordinary powers of
railroad company, and Is not to be pre-
sumed from the usual grant of powers in
railroad charter" This, in our view, is
correct statement of the law.
In Thomas va Railroad company, 101
U. S., n, a railroad company in New
Jersey had leased its road, franchises
and property for period of twenty
years, giving the lessee complete control
thereof, and received as rent one-half the
gross sum collected by the lessee from the
operation of the road The decision turned
upon the power of the company, under its
corporate authority to make the lease. The
lessees insisted that corporation may at
common law do an act which is not either
expressly or impliedly prohibited by its
charter. To this the court responded: 1--WE
do not concur in this proposition. We take
the general doctrine to be in this country,
though there may be exceptional cases
and some authorities to the contrary,
that tho powers of corporations organized
under legislative statutes, are such, and such
only, as those statutes confer. Conceding
the rule applicable to all statntes that what
IS fairly implied is as much granted as what
is expressed it remains that the charter of a
corporation is the measure of its powers, and
that the enumeration of these powers i'm
plies the exclusion of all others"
The doctrine as above stated meets our
hearty approval. If the allegations Of the in
formation are true, and they are to be so con-
Sidered on demurrer TO the information, the
defendant induced the people along its line,
from the Kansas border to the city of Lin
coin, to grant liberal aid for the construction
Of the road Every piece of land subject to
taxation in the counties along the line Of said
road are, practically, mortgaged by the issu-
ing of bonds to aid In building 1t. The inter-
est has, presumably, been paid on these bonds
to the present time. Many of the settlers
along such road when the bonds were issued
were pioneers, struggling with the
1culties incident to new country.
TO many of them, no doubt. the taxes
necessary to meet the interest, and amount
required for the sinking fund, has been q
burden. And to every one the tax was voted
TO aid in constructing and operating an inde
pendent line Of railway. That was the con-
tract OF the parties, and the state would be
derelict in its duty If it did not compel an OBJ
of its duties. The defendant, how
ever, having obtained this bonus, sought to
surrender all its powers, rights and fran
chises to another corporation for the period
Of 800 years. So far as the defendant is con-
cerned, it has ceased to operate railroad,
and the charge of misuser and nonuser
plainly appears on the face of the record. 1t
is not the policy of the law to allow rail-
road company, organized as an independent
line, to procure aid on every hand in that
character, and, after the road is completed
sell out to the highest bidder Honorable
and fair dealing are as essential in the deal
ings of a railroad corporation with individu-
ais and the public, in the construction and
operation of its road, as between individuals in
the affairs of life. A railway company can
not be permitted TO act in bad faith with
those from whom it has received aid, upon
certain conditions. Having received the con-
sideraton, it must perform its part, and the
parties are entitled to liberal compliance
And while IA lessee in proper case, or as
signee, or purchaser, will take road bur-
6ened with the conditions, obligations and
duties assumed by the original corporation,
yet there can be no such transfer by lease,
assignment or sale, without express statu-
tory authority, and, as we find no such au-
thority, and the defendant has been guilty of
inisuser and nonuser of its franchises, they
are subject to forfeiture.
2, We have placed the decision entirely
upon the statute, but there are other grounds
which will now be considered. Section 3,
article IL of the constitution provides that mo
railroad corporation or telegraph company
shall consolidate its stock, property, fran
chises or earnings, in whole or in