Henry Billings Brown

“ If, from reasons of public policy, the legislature declares that a railway shall not become the purchaser of a parallel or competing line, the purchase is not the less unlawful, because the parties choose to let it take the form of a judicial sale. A person who, by reason of any statutory disability, such as infancy, lunacy, marriage, or otherwise, is incompetent to buy at private sale, is not less incompetent from becoming the purchaser at a judicial sale. ”

“ As we have frequently held that a power to connect or unite with another road refers merely to a physical connection of the tracks, and does not authorize the purchase or even the lease of such road, or any union of their franchises, it is evident that this act is no authority for the proposed consolidation. ”

“ It is hardly possible to suppose that the legislature intended to allow the company to 'extend'-that is, to construct any extension-of a branch road, and at the same time to confer an unlimited power to purchase and hold any road constructed by another company. ”

“ There are, doubtless, cases where the police power has been invoked to justify acts of the legislature which were dictated to a certain extent by local interests, or with the effect of unduly burdening or interfering with foreign or interstate commerce. ”

“ Upon the other hand, the company insists that the power to purchase and hold other roads is not only unlimited and extends to all other roads built or to be built, although parallel and competing lines, but that it constitutes an irrevocable contract, which a subsequent legislature is powerless to impair. ”

“ The thirteenth section of the Tennessee act, incorporated into the first section of the Kentucky act, also authorized the company to permit branch roads to connect with it at any points to be agreed upon between the company and the stockholders of the branch road. It also authorized the issue of bonds to obtain the means to construct and equip any branch road, and provided that the credits and profits of the main stem should not be used for such purpose, nor the property and profits of any branch road be used to build the main stem. ”

“ Railroad Co., 36 N. J. Eq. 5, a statute authorized railroad companies to lease their roads, or any part of them, to any other corporation or corporations of that or any other state, or to unite and consolidate, as well as merge their stock, property, franchises, and roads, with those of any other company or companies; and that, after such lease or consolidation, the company acquiring the other's road might use and operate such road. ”

“ In reply to the argument that millions of dollars have been invested in the securities of the company upon the faith of what was supposed to be its admitted powers, and that its capital stock of $1,500,000 in 1856 has expanded to $51,000,000, it is sufficient to say that, in making such investments, capitalists were bound to know the authority of the company under its charter, and to put the proper interpretation upon it ”

“ Permission to consolidate such roads is no more to be taken as an approval of a general policy of consolidation than are the laws which have been repeatedly upheld by this court, granting corporations exclusive privileges to supply municipalities with the comforts of life for a certain number of years, of which class of monopolies the one upheld in New Orleans Gaslight Co. ”

“ In this view, we cannot say that a contemporaneous construction of this charter, which ratified the purchase of a few short local lines, was sufficient to justify the company in consolidating with a parallel and competing line between its two principal termini, with a view of controlling the through traffic from the lower Mississippi to Cincinnati, and destroying the competition which had previously existed between the two lines. It is possible that the commonwealth might, if it had seen fit to do so, have enjoined the acquisition of some of these parallel lines ”

“ Ct. 953: 'It is unnecessary, however, to express a definitive opinion upon the question whether a contract between these parties was beyond the corporate powers of the plaintiff, because, as held by the decisions of this court already cited, a contract beyond the corporate power of either party is as invalid as if beyond the corporate powers of both, and the contract in question was clearly beyond the corporate powers of the defendant.' See, also, Thomas v. Railroad Co., 101 U.S. 71; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U.S. 1, 9 Sup. Ct. 409; Pennsylvania R. Co. v. St. ”

“ The court enjoined the purchase, saying that 'the purchase of a rival railroad is (not to speak of public policy) foreign to the objects for which the defendant was incorporated. Nor can the purchase be regarded as within the authority given by the defendant's charter to build lateral or branch roads. ”

“ In the case of Munn v. illinois, linois, 94 U.S. 113, Mr. Chief Justice Waite said: 'Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. ”

“ That the lines proposed to be consolidated are parallel and competing is evident from an inspection of the map, since both connect the two important cities, Louisville and Memphis, which constitute their termini, and are natural competitors for the traffic from the Southwestern to the Northeastern states, by way of Cincinnati, as well as that in the opposite direction. ”