Omaha daily bee., 1888-04-27

corporate name, is bad. To this IL mey be an
swered: The Information is merely descrip.
tive. IL Is not an affirmation that the de-
PENDANTS are a corporation, but that, by the
name of tho president, directors and com.
pany of the Bank Of Hudson, or using that
name, they have done the acts in the in for
nation alleged; And It then calls on them TO
answer by what authority. Besides, the
statute authorizes proceedings against tho
corporation, The judgment must be against
the corporate name. AZ corporation created
by the Legislature may lose its franchises by
o msuser or nonuser OF them They may
be resumed by the government under q judg-
ment upon quo warranto, TO ascertain and
enforce the forfeiture. 60 Cranch 5l) The
Judgment to be given is a judgment of seizure
which produces dissolution of the corpora
ton"
AS the proceeding is directed against tho
corporation itself for misuser and nonuserof
its corporate franchises, 1t is tho only neces-
sary party defendant in the case. If, how
ever, the court should find it necessary TO
render Judgment of custer against the de-
fendant and vacate and set aside its charter
the rights and bona fide claims of all parties
against the defendant will be protected. The
first ground of demurrer therefore, is over
ruled.
g; Section SO of chapter 10 Of the compiled
statutes, provides whenever the lines Of
railroad of anyrailroad companies In this state
or any portion of such lines have been or
may be constructed so as TO admit the pas
sage OF burden or passenger cars over any
two or more such roads continuously, with
out break of gauge or interruption, such
companies are hereby authorized to consoli-
date themselves into single corporation, in
the manner following: The directors Of tho
said two or more corporations may
enter into an agreement under the
corporate seal of each, for the consolida-
tion of the said two or more corporations,
prescribing the terms and conditions thereof,
the mode of carrying the same into effect,
the name of the new corporation the number
of directors thereof, which shall not be less
than seven, the time aud place of holding the
first election of directors the number Of
shares of capital stock in the new corpora
tion, the amount of each share, the manner
Of converting the shares of capital stock in
each of said two or more corporations INTO
shares In such new corporation, the manner
of compensating stock holders in each of said
two or more corporations who refuse to con-
vert their stock into stock of such new cor
poration, with such other details us they
shall deem necessary to perfect such con-
solidaton OF said corporations, and such new
corporations shall possess all the powers,
rights and franchises conferred upon such
shall be subject to all the restrictions
and perform all the duties i'm
posed by the provisions of this subdivisions;
provided, that all stockholders in either OF
such corporations shall be paid the market
value of said stock at the date Of such con-
solidation.n
This is section IS Of an act passed by the
territorial legislature entitled: "An act TO
create and regulate railroad companies " ap.
proved February 8, 1864; and Is section SO Of
chapter 25 of the revised statutes of 1866.
The act including this provision was copied
substantially from the statute of Ohio of
1854, relating to railroad companies"
e Cirwen lO56.) The construction of this
section was before the supreme court of Ohio
in state VS. Vanderbilt, 81 o. s., 500, where
it was held that the word Continuously" in
the section above quoted, was restriction
upon the power to consolidate, and that this
right existed only where the lines, when
consolidated, would form one continuous
line over which freight and passengers might
be carried without transfer, and that it did not
apply to roads which when united would not
form continuous line The court says: "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 railroads, seems to be
beyond dispute, and it may be fairly inferred
from the record that leading object in max
ing the consolidation, was to destroy that
competition. That being true, the lines of
these roads are not, in my Judgment, so
constructed as to admit the passage Of bur-
den or passenger cars over two or more of
such roads continuously within the proper
meaning of section 1879. That the mere
physical ability to pass cars from one road to
the other satisfies the statute, is construc-.
ton 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 only be made for the very purpose of
passing freight and passengers over both
lines, or some material parts thereof not
necessarily in direct or straight line, but
the transportation Of freight and passengers
is thing which the legislature
might well desire to encourage, as 1t may be
alike TO the public and the
But corporations have power
only rs 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 construc-
tion for it will not be assumed that the law
making power bas authorized the creation of
a monopoly so detrimental to the public in
terest. But the statute contains no such
words.n
This decision, in our view, states the law
and the statute only authorizes the
of two lines of railway where
the lines thus consolidated will form one
continuous railroad. AS the Atchlson
& Nebraska railroad and tho Atchi-
son, Lincoln & Columbus rail-
road when consolidated, would form
one continuous line, the statute authorized
such consolidation. That part of the line,
however, in Nebraska is held, by said com
)any as a Nebraska corporation, while that
n Kansas is held as a Kansas corporation
lnder the laws of that state.
Section 81, chapter 16, of the compiled stat
ltes, provides that: 'Any railroad company
heretofore or hereafter incorporated may, at
my time, by means of subscription to the CAPT
sal stock of any other company, or otherwise,
aid such company in the construction of its
for the purpose of forming a con
lection of said last mentioned road with the
'oad owned by the company furnishing such
lid or any railroad company existing in pur-
Iuance of law, may lease or purchase any
,art or all of any railroad constructed by any
,ther company if said company's lines of said
Dad are continuous or connected as afore-
aid upon such terms and conditions
Is may be agreed on between
aid companies respectively, or any two
,r more railroad companies whose lines are
10 connected, may enter into an arrangement
or their common benefit, consistent with
md calculated 10 promote the object for
which they are created; provided, that no
uch aid shall be furnished nor any purchase,
ease or arrangement perfected until meet
ng of the stockholders of each of said COM
,anies shall have been called by the direct
,rs thereof at such time and place and in
manner as they shall designate, and the
lolders of at least two-thirds Of the stock of
uch company represented at such meeting,
ther in person or by proxy, and voting
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