Louisville & Nashville Railroad v. Kentucky

after stating the case, delivered'-the opinion of the court.

This case turns to a certain extent upon the principles just announced in Pearsall v. Great Northern Railway Company, ante, 646, although it differs from that case in the fact that the charter of the L. & N. Co. contains no reserved power to alter or amend, as well as in several other minor particulars.

1. The original charter of the L. & N. Co., granted in 1850,

By the act of March 7, 1854, the company was given power to unite their road with any other road connecting therewith upon such conditions as the two companies might agree upon. 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. Atchison, Topeka &c. Railroad v. Denver & New Orleans Railroad, 110 U. S. 667 ; Pennsylvania Co. v. St. Louis, Alton &c. Railroad, 118 U. S. 290 ; Oregon Railway v. Oregonian Railway, 130 U. S. 1 ; St. Louis Railroad v. Terre Haute Railroad, 145 U. S. 393 ; Commissioners v. Railroad Co., 50 Indiana, 85, 110. The important power to purchase or consolidate with another line cannot be inferred from any such indefinite language as “ to unite or connect with such road.” The union referred to in this act is also limited to a union with a road already connected with the L. & N. Co. by running into the same town, and could have no possible relation to the acquirement of a parallel or competing line. ¥e ordinarily speak of two roads as connecting when they have stations in the same city, in which case authority is given by this act to make a mechanical union between the tracks of the two companies.

Appellant relies principally, however, upon the act of Januuary 17, 1856, the first section of which reenacted an act of the legislature of Tennessee, passed the year before, chartering the L. & N. Co., which last mentioned act contained sixteen sections authorizing, among other things, the issue of bonds of the State to aid the company in building a bridge across the Cumberland River, and in purchasing iron, etc. The Kentucky act contained but five sections in all, the third, of which provided “ that said company may, under the provisions of the thirteenth section of this act, from time to time extend any branch road,

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. As this section, however, was merely limited to branch roads, the L. & N. Co. is forced to rely for its authority to acquire the control of the Chesapeake Co. upon its power “ to purchase and hold any road constructed by another company.”

The Court of Appeals of Kentucky held that the whole section, taken together, indicated that the power to purchase and hold any road constructed by another company referred to branch roads, which, by a previous clause of the same section, the L. & N. Co. was authorized to construct, and that this was also further manifested by the power given to “ agree on terms to receive the cars of other roads on their said road.”

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 powei’less to impair.

In construing this section we are bound to bear in mind the general rule, so often affirmed by this court, that all doubts with regard to the authority granted in a corporate charter are to be resolved against the corporation, and that a surrender of the power of the legislature in any matter of public concern must never be presumed from uncertain or equivocal expressions. Dubuque & Pacific Railroad v. Litchfield, 23 How. 66 , 88; Delaware Railroad Tax, 18 Wall. 206 , 225;

At this time (January, 1856) the only railroads in the State of Kentucky in operation were from Louisville, eastwardly to Lexington, and one from Lexington, northwardly by way of Paris, to Covington. There was no road running into southern or western Kentucky, or southwardly from Louisville, except the L. & N. Co.’s road as far as it had gone. While the General Assembly was not only willing but anxious that this company should have liberal and broad powers to aid it, the question of parallel or competing lines had probably not entered into the minds of- the legislators as a contingency to be provided against.

There are two reasons why, in our opinion, the third section of the act of 1856 was never intended to confer a general power to purchase roads constructed by other companies, regardless of their relations or.connections with the L. & N. road.

(1.) The language of the section is that the “ company may, under the provisions of the thirteenth section of this act,” (referring to the thirteenth section of the Tennessee act, reenacted,) “ from time to time extend ” by its own construction “ any branch road.” Now, as before observed, the thirteenth section of the Tennessee act refers only to branch roads, the cost of which was to be a charge or mortgage upon the branch line, and not upon the main stem; and it seems reasonable to infer that the cost of whatever roads were built or purchased under it were intended, to be a charge upon the branch only, and not upon the main line. If the limitation “ under the thirteenth section” were held to be applicable only to that part of the third section which allows extensions of branch lines, it would result that, if the company constructed a branch road, its cost would be a charge on the branch line, and not upon the main line; but if it should purchase an independent line, the cost could be made a charge upon the main line.

(2.) 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 con

That the General Assembly could have intended to grant the broad powers claimed is also highly improbable in view of an act passed a little more than two jmars thereafter, (January 22,1858,) by which all railroad companies were declared to have power and authority to make with each other contracts of the following character: First, for the consolidation of either the management, profits or stock of any two or more companies, the roads of which are or shall be so connected as to form a continuous road. Second, for the leasing of the road of one company to another, provided the roads so leased shall be so connected as to form a continuous line. This act is a general one, and the possibility of consolidating parallel or competing.lines was evidently considered and reprobated. ,

As bearing upon the proper construction of this charter, as well as upon the question of actual parallelism, the case of the State v. Vanderbilt, 37 Ohio St. 590 , is an instructive one. This was an action in quo warranto to test the legality of a consolidation of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company and the Cincinnati, Hamilton and Dayton Railroad Company, the former of which owned and controlled a road running from Cleveland upon

So in Elkins v. Camden & Atlantic Railroad, 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. The court held that this did not authorize a railroad, running from Philadelphia to Atlantic City, to assume the debts and buy a majority of the stock and bonds and the equipment of a rival railroad running between the same termini, or to become the purchaser of its property at a foreclosure sale, or to control it after such sale in a reorganization of the company. The court

Defendant, however, further urges in support of its assumed rights under the third section of the charter of 1856, a contemporaneous construction by the parties in interest, under which several lines were purchased which ran parallel to some of its own branches, and one of which, known as the Cecilia branch, about fifty miles in length, running substantially parallel to its main line, which it purchased and held for a short time, and then sold to the'Chesapeake Co. These, however, were local lines, which either ran parallel to the branches of the L. & N., such as the Owensboro and Nashville, and the Bardstown branch, or an extension of its main line, such as the Louisville, Cincinnati and Lexington, running from Louisville to Cincinnati, or a short line like the Cecilia branch, running parallel to the main line; yet, as tbe terminus at one end or the other was in most cases different, it can hardly be said that any of these were competing lines, or that their purchase showed such an acquiescence on the part of the State as to estop it from opposing the purchase of a through line from Louisville to Memphis, by the way of Paducah—a line which connects the principal termini of the L. & N. Co. by a road substantially parallel, and no part of which is more than 50 miles from the corresponding part of the L. & N. Putting the broadest construction upon what was actually done, it amounts to no more than that the company made several purchases of local lines, in which the State acquiesced. That the State may have seen fit in particular cases to ratify the acquisition of local lines parallel to certain branch lines of the main road, does not argue that it intended to approve the purchase of parallel and competing through lines, especially in view of the act of June 22, 1858, which limited the power to consolidate or lease to roads so connected as to form a continuous line.

While the doctrine of contemporaneous construction is doubtless of great value in determining the intentions of parties to an instrument ambiguous upon its face, yet to justify its application to a particular case, such contemporaneous construction must be shown to have been as broad as the exigencies of the case require. 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, and the fact that it did not deem such purchases to be in contravention of public, policy ought not to estop it from setting up an opposition to another purchase, which, in its view, is detrimental to the public interests. As is said by Mr. Justice Cooley, in his Constitutional Limitations, (6th ed.) page 85 : “A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period in violation of the constitutional prohibition, without the mischief which the Constitution Avas designed to guard against appearing, or without any one being sufficiently interested in the subject to raise the question; but these circumstances cannot be alloAved to sanction, a clear infraction of the Constitution.” We are, therefore, of opinion that the Court of Appeals was substantially correct in saying that “ though thirty-eight years since the passage of the act of 1856 and thirty-six since the aet of 1858 had elapsed, Avhen .this action was commenced, the L. & N. Co. never before claimed or attempted to exercise the right to purchase and hold parallel and competing lines, except about 1878, when

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. The object of the consolidation is obviously to enable the L. & N. to obtain a complete monopoly of all the traffic through the western half of the State. Conceding that that part of the Chesapeake line which ran from Elizabethtown to Paducah was originally a branch line of the L. & N., and might haye been acquired as such under section 3 of the act of 1856, it ceased to be such after the Cecilia branch was acquired, and the line was extended from Paducah to Memphis. It then became a parallel and competing line within the meaning of the constitution.

In reply to the argument that millions of dollars have been invested in th¿ 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; and that we are not at liberty to presume that investments were made upon the faith of powers that do not exist; and, if they were, the Commonwealth is not bound to respect investments made under a misapprehension of the law. Indeed, the argument proves too much, and would justify the inference that capitalists put their money into the road upon the assumption that it had been given irrevocable right to absorb to itself every road which might thereafter be constructed within the limits -of the Commonwealth.

2. Besides this, however, in order to support the proposed consolidation of these two systems, the parties are bound to show, not only that the L. & N. Co. was competent to buy, but

The Chesapeake Co. was incorporated under an act of the General Assembly of Kentucky, passed in 1881, (Acts of 1881, p. 258,) the ninth section of which declares that the corporation should be “governed by any general law .enacted by the legislature of this State in regard to consolidation with parallel or competing lines.” So that, although organized prior to the adoption of the constitution of' 1891, it became subject at once, and as soon as said constitution was adopted, to its provision declaring that no railroad should consolidate its capital stock, franchise or property with that of any other owning a parallel or competing line or structure. .

The only answer attempted to this proposition is that the cases above cited in support of the doctrine that to make a valid sale there must be power both in the seller to sell and in the buyer to buy, refers only to private, voluntary sales, arranged - between the companies, and- dependent upon their respective corporate powers; and that the doctrine has no

We do not understand, however, that the fact that a purchase is made at a judicial sale confers upon the purchaser any right he is forbidden to acquire, if the purchase had been made at private sale. 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. The prohibition is not upon the power of the court foreclosing the mortgage to order a judicial sale of the property, but upon its power to confirm a sale made to a parallel or competing road. The allegation of the bill in this connection is that suits have been filed upon claims against the several companies interested, with the object of having a judicial sale of their property, so that the L. & N. Co. may purchase the property in' its own name, or in the name of some new company or companies organized by it of in which it shall have a controlling interest. It is true, as was observed in Pearsall v. The Great Northern, that the stockholders of the L. & N. Co. may individually become the purchasers of the Chesapeake Co. at a judicial sale, and may organize a new corporation, but it would still be a corporation separate and distinct from that of the L. & N. Co. The inhibition of the Constitution is not against the sale to individuals, though they may chance to be stockholders in a competing line, but against the acquisition by a railway, in any form, of a parallel or competing line. If this could be evaded by going through the form of a judicial sale, the constitutional provision would be of no value.

3. But, conceding that the L. & N. Co. was vested by the act of January 17, 1856, with the right to purchase all railroads constructed by other companies, whether parallel or competing or not, and that by virtue of such power it might become the purchaser of the Chesapeake system, it is still

The answer of the defendant to this was that the thirteenth section of the Tennessee act of 1855, which was reenacted in the first section of the Kentucky act of January 1Y, provided “ that this act shall take effect from and after its passage.” If the adoption verbatim of this Tennessee act by the Kentucky legislature was sufficient to give the Kentucky act immediate effect, then, undoubtedly, the act of February 34 was a subsequent act and did not apply to the charter of January 1Y. Upon the other hand, if the reenactment of the thirteenth section of the Tennessee act was not intended to give, the Kentucky charter immediate effect, then this charter did not become operative until March 1Y, and thereby became subject to the reservation statute of February 34, which did take immediate effect. This question was elaborately argued at the bar, but, for the reasons hereafter stated, we do not consider it necessary to express a decided opinion upon the point.

4. Whatever be the disposition of this question, and however broad the powers of the L. & N. Co., under its charter of 1856, we are still confronted with the proposition that the proposed consolidation of these two railway systems is a clear violation of section 201 of the constitution, which forbids the

We regard the issue presented in this case as involving practically the same question. While there is no general reservation clause in the charter of the L. & N. Co., we think, for the reasons stated in the Pearsall case, that under its police power the people, in their sovereign capacity, or the legislature, as their representatives, may deal with the charter of a railway corporation, so far as is necessary for the protection of the lives, health and safety of its passengers or the public, or for the security of property or the conservation of the public interests, provided, of course, that no vested rights are thereby impaired. In other words, the legislature may not destroy vested rights, whether they are expressly prohibited from doing so or not, but otherwise may legislate with respect to corporations, whether expressly permitted to do so or not. While the police power has been most frequently exercised with respect to matters which concern the public health, safety or morals, we have frequently held that corporations engaged in a public service are subject to-legislative control, so far as it becomes necessary for the protection of the public interests. In the case of Munn v.

There was a difference of opinion in the court as to whether this language applied to elevators in such manner as to empower the legislature to fix their charges; but it has been too often held that railways were public highways, and their functions were those of the State, though their ownership was private, and that the were subject to control for the common good, to be now open to question. It was so expressly stated in Olcott v. Supervisors, 16 Wall. 678 , 694. This power was held to extend, in New York v. Miln, 11 Pet. 102 , to a law requiring the masters of emigrant vessels to report an account of their passengers; in the Railroad Commission cases, 116 U. S. 307 , to the right of a State to reasonably limit the amount of charges by a railway company for the transportation of persons and property within its jurisdiction, notwith standing a statute which granted to it the right “ from time to time to fix, regulate and receive the tolls and charges by them to be received for transportation; ” in Mugler v. Kansas, 123 U. S. 623 , to legislation which prohibited the manufacture of intoxicating liquors within the limits of the State, even as to persons who, at the time, happened to own property, whose chief value consisted in its fitness for such manufacturing purposes ; in Georgia Banking Co. v. Smith, 128 U. S. 174 , to the prevention of extortion by railways, by unreasonable charges, and favoritism by discriminations; in Charlotte &c. Railroad v. Gibbes, 142 U. S. 386 , to a requirement that the salaries and expenses of a state railroad commission be borne by the railroad corporations within the State; in New York & New England Railroad v. Bristol, 151 U. S. 556 , to a statute com

Indeed, it was broadly held in Chicago Life Insurance Co. v. Needles, 113 U. S. 574 , that the grant, of a corporate franchise is necessarily subject to the condition that the privileges and franchises conferred shall not be abused, or employed to defeat the ends for Avhich they Avere conferred; and that, Avhen abused or misemployed, they may be withdraAvn by proceedings consistent with law. It was said in this case that an insurance corporation Avas subject to such reasonable regulations as the legislature might from time to time prescribe, for the general conduct of its affairs, serving only to secure the ends for which it was created, and not materially interfering Avith the privileges granted to it. “It Avould.be extraordinary,” said the court, (page 580,) “if the legislate department of a government, charged Avith the duty of enacting such laws ás may promote the health, the morals and the prosperity of the people, might not, Avhen unrestrained by constitutional limitations upon its authority, provide, by reasonable regulations, against the misuse of special corporate privileges Avhich it has granted, and which could not, except by its sanction, express or implied,-have been exercised at all.” It Avas further held that the establishment against such a corporation before a judicial tribunal that it'was insolvent, or that its condition was such as to render its continuance in business hazardous to the public; or that it had exceeded its corporate poAvers; or that it had violated the rules, restrictions or conditions prescribed by law, constituted a sufficient reason for the State, Avhich created it, to reclaim the franchises and privileges granted to it.

Ve think that the principle of these, cases applies to the power of the legislature to forbid the consolidation of parallel

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 Gas Co. v. Louisiana Light Co., 115 U. S. 650 , is a distinguished example. Such cases are, however, exceptional, and rest upon the theory of an authority expressly vested in the corporation for a limited time, in consideration of benefits likely to accrue to the public from the establishment of a particular industry. Even in such cases, however, we have held that the monopoly may be modified or abrogated, if it proved to be prejudicial to the public health or public morals. Butchers' Union Co. v. Crescent City Co., 111 U. S. 746 . In this case Mr. Justice Miller, in delivering the opinion of the court, observed, p. 750; “ While we are not prepared to say that the legislature can make valid contracts on no subject embraced in the largest definition of the police power, we think that, in regard to two subjects so embraced, it cannot, by any contract, limit the exercise of such powers to the prejudice of the general welfare. These are the public health and ptiblic morals. The preservation of these is so necessary to the best interests of social organi

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. Within this category are laws levying taxes upon alien passengers arriving from foreign ports, for the use of hospitals, The Passenger cases, 7 How. 283 ; requiring a bond to be given for every such passenger to indemnify the State against expense for the relief or support of the person named in the bond, Henderson v. New York, 92 U. S. 259 ; even though such bonds be limited to lewd and debauched women, Chy Lung v. Freeman, 92 U. S. 275 ; prohibiting the driving or conveying of foreign cattle into the State between certain dates, Railroad Co. v. Husen, 95 U. S. 165 ; taxing persons from other States engaged in selling or soliciting the sale of liquors, to be shipped into the State from places without it, without imposing a tax upon similar agents for manufacturers within the State, Walling v. Michigan, 116 U. S. 446 ; Welton v. Missouri, 91 U. S. 275 ; statutes requiring inspection, before slaughtering, of cattle, sheep and swine designed for slaughter for human food, so far as they apply to foreign meats, Minnesota v. Barber, 136 U. S. 313 ; a similar statute prohibiting the sale of meat from animals slaughtered one hundred miles or more from the place at which it was offered for sale, unless previously inspected by local inspectors, Brimmer v. Rebman, 138 U. S. 78 ; and finally, to statutes requiring a license, under onerous conditions, from the agents of foreign express companies, Crutcher v. Kentucky, 141 U. S. 47 .

These cases, however, do not infringe upon the general principle, so frequently declared, that where the police power is invoked in good faith for the prohibition of a practice which the legislature has declared to be detrimental to the public interests, it will be sustained, wherever it can be done without the impairment of vested rights. Notwithstanding these

5. But little need be said in answer to the final contention of the plaintiff in error, that the assumption, of a right to forbid the consolidation of parallel and competing lines is an interference with the power of Congress over interstate commerce. The same remark may be made with respect to all police regulations of interstate railways. All such regulations interfere indirectly, more or less, with commerce between the. States, in the fact that they impose a burden upon the instruments of such commerce, and add something to the cost of transportation, by the expense incurred in conforming to such regulations. These are, however, like the taxes imposed upon railways, and their rolling stock, which are more or less, according to the policy of the State within which the roads are operated, but are still within the competency of the legislature to impose. It is otherwise, however, with respect to taxes upon their franchises and receipts from interstate commerce, which are treated as a direct burden. There are certain intimations in some of our opinions, which might perhaps lead to an inference that the police power cannot be exercised over a subject confined exclusively to Congress by the Federal Constitution. But while this is true with respect to the commerce itself, it is not true with respect to the instruments of such commerce.

It was said in Sherlock v. Alling, 93 U. S. 99 , 103, 104, and quoted with approbation in Plumley v. Massachusetts, 155 U. S. 461 , that “ in conferring upon Congress the regulation of commerce, it was never intended to cut the States off from legislating on all subjects relating to the health, life and safety-of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it with

It has never been supposed that the dominant power of Congress over interstate commerce took from the States the power of legislation with respect to the instruments of such commerce, so far as the legislation was within its ordinary police powers. Nearly all the railways in' the country have been constructed under state authority, and it cannot be supposed that they intended to abandon their power over them as soon as they were finished. The power to construct them involves necessarily the power to impose such regulations upon their operation as a sound regal’d for the interests of the public may seem to render desirable. In the division of authority with respect to interstate railways Congress reserves to itself the superior right to control their commerce and forbid interference therewith; while to the States remains the power to create and to regulate the instruments of such commerce, so far as necessary to the conservation of the public interests.

If it be assumed that the States have no right to forbid the consolidation of competing lines, because the whole subject is within the control of Congress, it would .necessarily follow that Congress would have the power to authorize such consolidation in defiance of state legislation — a proposition which only needs to be stated to demonstrate its unsoundness. As we have already said, the power of one railway corporation to purchase" the stock and franchises of another must be conferred by express language to that effect in the charter, and hence, if the charter of the L. & N. Co. had been silent upon that point, it will be conceded that it would have no power to make the proposed purchase in this. case. As the power

While the constitutional power of the State in this particular has never been formally passed upon by this court, the power of state legislatures to impose this restriction upon the general authority to consolidate has been recognized in a number of cases. Railroad Co. v. Maryland, 21 Wall. 456 , 470; Shields v. Ohio, 95 U. S. 319 ; Wallace v. Loomis, 97 U. S. 146 , 154; New Buffalo v. Iron Co., 105 U. S. 73 ; Leavenworth v. Chicago &c. Railway, 134 U. S. 688 , 699; Livingston County v. Portsmouth Bank, 128 U. S. 102 ; Keokuk & Western Railroad v. Missouri, 152 U. S. 301 ; Ashley v. Ryan, 153 U. S. 436 . In the last case it was broadly held that a State, in permitting railway companies to consolidate, might impose such conditions as it deemed proper, and that the acceptance of the franchise implied a submission to the conditions, without which it could not have been obtained.

The power to forbid such .purchase or consolidation with competing lines has been directly upheld in a large number of cases in the state courts, in some of which cases a violation of the commerce clause was suggested, and in others it was not. Hafer v. Cincinnati, Hamilton & Dayton Railroad, 29 Wkly Law Bull. 68 ; State v. Atchison & Red River Railroad, 24 Nebraska, 143; Gulf, Col. & Santa Fe Railway v. State, 72 Texas, 404; East Line &c. Railway v. Rushing, 69 Texas, 306; Pennsylvania Railroad v. Commonwealth, 7 Atl. Rep. 368 ; Montgomery's Appeal, 136 Penn. St. 96 ; Currier v. Concord Railroad, 48 N. H. 321 ; Texas & Pacific Railway Co. v. Southern Pacific Railway Co., 41 La. Ann. 970 . See also Langdon v. Branch, 37 Fed. Rep. 449 ; Hamilton v. Savannah

In conclusion we are of opinion —

1. That a general right to purchase or consolidate with other roads was never conferred upon the L. & N. Co.

2. That. the Chesapeake Co. was never vested with the power to consolidate its capital stock, franchises or property with that of any other road owning a parallel or competing line.

3. That, conceding that the requisite power existed in both the above companies, section 201 of the constitution of 1891 was a legitimate exercise of the police power of the State, and forbade such consolidation, at least so far as such power remained unexecuted.

The decree of the Court, of Appeals of Kentucky is, therefore, ' Affirmed.

Mr. Justice Brewer and Mr. Justice White concurred in the result.