Imágenes de páginas

Mumford, 73 Mo. 647; Tull v. Ruggles, 56 N. , exhibitions of a magic lantern, and of music, Y. 424; Thomas v. People, 59 III. 160; Dunn v. dancing and song, and tbe like; and between People, 40 III. 465; Seidenbender v. Charles, 4 tte acts he always sold his medicines for which Serg. & R. 151, 8 Am. Dec. 682; United States he claimed great curative virtues. These v. Olney, 1 Deady, 461; Bell v. State, 5 Sneed, exhibitions were in a tent wbich would seat be507; Bishop, Stat. Crimes, 2d ed. $ 952; 2 tween 900 and 1,000 people, and would furnish Whart. Crim. Law, 9th ed. § 1491.

standing room for about 2,500 persons. For In this case it is not denied that the defend- tickets of admission to see this performance, ant bas distributed presents or prizes to the the closing one of the season, advertised as a bolders of tickets given to the public, -eight Jubilee” performance, a charge of ten cents prizes among some 8,000 ticket-holders. It is was made. But these tickets had no connecalso uncontroverted that this distribution bastion whatever with those entilling the holders. been made by lot or chance. This was done to a chance for the eight prizes. For these by two children chosen from the audience, who latter tickets or chances noibing was charged. selected by lot eight tickets from a large num-/ They had been distributed, free, to any and all ber of duplicates wbich were tbrown by the persons present at his previous performances, defendant at random on the stage or platform. and for admission to these exbibitions no These tickets were numbered, and the persons charge was made. The only fee cbarged was holding the corresponding numbers were for the occupancy of a seat; there was nove entitled to these prizes, or presents, according for entrance. Nor was it necessary that a to their number. But we can see nothing in holder of a successful ticket should be present the evidence from wbicb it can be inferred that to get bis prize in case he drew one. It would anyone, present or absent, paid any valuable be delivered as well at the defendant's private consideration, directly or indirectly, for these house. This fact was advertised in a Mobile tickets, or for the chance of getting a prize. paper, and one of the prizes was actually It is true that, on the day of the drawing, the delivered there. The suspicion, even though defendant had held one of bis customary per- well founded, that these presents may bave formances, consisting of acrobatic contortiuns, I been given away in order to ipduce a larger

Early cases as to requisites of indictment. See fund claim different portions thereof, when the Boullemet v. State, 28 Ala. 83; State v. Sykes, 28 Conn. aggregate of all the claims exceeds the full amount 225; Markle v. State, 3 Ind. 537; Com. v. Braynard, of the fund. Yates v. Tisi'ale. 3 Edw, Ch. 71, 6 N. Thach. Cr. Cas. 146; Com. v. Pollard, Thach. Cr. Cas. Y. Ch. L. ed. 575, and note; Fargo v. Arthur,43 How. 280; Com. v. Johnson, Tbach. Cr. Cas. 284; Com, v. Pr. 193; Newball v. Kastens, 70 III. 156; Atchison Eaton, 15 Pick. 273: Com. v. Horton, 2 Gray, 69; Fre- Board of Education v. Scoville, 13 Kan. 17. leigh v. State, 8 Mo. 60 ; State v. Kenmon, 21 Mo. 262; Equity may stop the running of a lottery until State v. Follet, 6 N. H. 53; Pickett v. People, 8 Hun, an accounting is awarded, but will not appoint a 83; People v. Sturdevant, 23 Wend. 418; People v. receiver to take charge of it. Lawrence v. SimTaylor, 3 Denio, 91, 99; Com. v. Gillespie, 7 Serg. & mons, supra.. R. 409.

Injunction lies against the owner to prevent bim Evidence in action.

from disposing of prizes pending proceedings for

their forfeiture under the To convict for the sale of a lottery ticket it must Kent, 6 Cal. 89); although equity will not aid a lot

statute (People v. be proved that the paper offered for sale repre- tery enterprise. Commerford v. Thompson, 2 sented a chance in the lottery. State v. Russell, 17

Flipp. 611. Mo. App. 16; State v. Bruner, 17 Mo. App. 274. See

Yet in Tennessee a bill in equity will lie to comDunn v. People, 40 Ul. 465.

pel the managers to adjudge a prize to the person Evidence that defendant sold a slip of paper entitled to it. McGimpsey v. Booker, • Yerg. 139. bearing certain numbers which might be drawn in See Buss r. Nashville, Meigs, 421. a lottery, then intended to be drawn, is sufficient.

When property sold is to be used in aiding and State v. Rothschild, 19 Mo. App. 137. The character of the ticket and intent of the par- Ruggles, 65 Barb. 432.

assisting in a lottery, the sale is void. Hull v.. ties may be proved by similar sales shown to bave

Every contract in aid of a lottery scheme or gift implied a lottery venture. State v. Ochsuer, 9 Mo. enterprise for the division of property to be deterApp. 216.

mined by chance is void under a statute prohibitConviction.

ing such schemes. Rothrock v. Perkinson, 61 Ind.

39. The jury has the undoubted right, in a prosecution for selling lottery tickets, to disregard the

Securities given for the purchase of lottery name and indorsement printed on them, and find

tickets cappot be enforced. Lewis v. Robarde, 3 that they really are lottery tickets, and not what | T. B. Mon. 406; Morton v. Fletcher, 2 A. K. Marsh. they profess to be, -tickets upon a horse combina- 137. tion, Boyland v. State, 69 Md. 511.

A lease of premises for the sale of lottery tickets On conviction for acting for another in disposing is void, and the rent reserved thereon cannot be of tickets the solicitor's fee must be taxed. Ec recovered. Edelmuth v. McGarren, 4 Daly, 467. parte Tompkins, 58 Ala. 71.

A note given for a ticket in a prohibited lottery

is void. Hawking v. Cox, 2 Cranch, C. C. 173; In equity.

Thompson v. Milligan, Id. 207; Eberman v. Reitzel, Where the Legislature grants a lottery franchise 1 Watts & S. 181. and authorizes its sale, the purchaser may, for a But a contract made by a ticket holder after his valuable consideration, permit others to share the rights are determined, disposing to a stranger of protits; but he cannot assign the franchise so as to any specified part of what he may have drawn, is enable each assignee to conduct a separate lottery. | valid. Rothrock v. Perkinson, supra. Lawrence v. Simmons (Ky.) i L. R. A. 172.

And a bond to perform certain duties under a Bills of interplender are maintainable where legal Foreign Lottery Act may be enforced here. several claimunts of a fund, as the amount drawn Kentucky v. Bassford, 6 Hill, 526, 1 £ D. Smith, on a lottery ticket, instead of claiming the whole 218

crowd to assemble at the defendant's perform- railroad company, will not be allowed, in the abances, with the expectation that they would Bence of express statutory authority, to vote such buy medicines, or pay a fee for occupying a

stock, eitber by itself or by other persons acting seat in the tent, would be too remote io con

in its interest, in the election of officers, or in stitute a legal consideration for the tickets. So

matters pertaining to the management and conwith the expeciation that it would increase the

trol of the latter company; at least where the

two roads are rivals, having substantially tho attendance at the so-called “Jubilee” perform

same field of operation, where a conflict of interance. The bolders of thousands of these

est may arise in the matter of expenditures, or tickets given away as gratuitous were not in the division of patronage or of earnings, or present, and yet stood an equnl chance in the where the profits of one company may be endistribution with those wbo were. And the hanced by a diminution of those of the other. doors were thrown open for free admission 2. An averment of refusal by the officers when the distribution took place, this event of a corporation, upon request, to take approoccurring just after the close of the exhibition priate legal proceedings to prevent the unlawful or performance proper.

voting of corporate stock, will authorize the enThe element of gaming which is wanting tertainment of a suit by stockholders in their own to constitute this transaction a lottery is the names for the accomplishment of that object. fact that no money was paid, directly or 3. Averments upon information and indirectly, for the chance of receiving a prize, belief are insufficient in the absence of any or of participating in the distribution by lot. allegation that the information is true. Nor would a jury be authorized to make a con.

(December 12, 1889.) trary inference, reasonably, from any evidence contained in tbe bill of exceptions. Many APPEAL by defendants from a decree of rulings of the court are directly opposed to these views.

overruling a demurrer to, and refusing to disIt follows from what we have said that the miss, a bill filed 10 enjoin the East Tennessee, city court erred in not giving the general Virginia & Georgia Railway Company from affirnative charge requested by the defendant. voting upon or transferring certain corporate

The judgment of conviction is reversed, and stock held by it, as well as refusing to dissolve a judgment will be rendered in this court dis- a preliminary injunction already granted. charging the defendant from further prosecu- Modified and remanded. tion under i be present indictment.

The facts are fully stated in the opinion. Reversed and rendered.

Mr. R. C. Breckell for the East Tennessee, Virginia & Georgia R. Co., appellant.

Messrs. Humes, Walker, Shefiey &

Gordon for the Memphis & Charleston R. MEMPHIE & CHARLESTON R. CO. et al., Co. Appts.

Messrs. John W. Weed and John M.

McKleroy, for appellees:
William Henry WOODS et al.

At common law one corporation cannot ac

quire the stock of another corporation, unless (....Ala.....)

expressly authorized by statute.

Milbank v. New York, L. E. & W. R. Co. 64 1. A railroad company, which has ac- How. Pr. 20; Oregon R. & Nav. Co. v. Oreço

quired a majority of the stock of another lnian R. Co. 130 U. S. 1 (32 L. ed. 837); Frank



NOTE.- Corporations; restriction on exercise of pow-, Works v. Dismukes, 87 Ala. 344; First M. E. Church

v. Atlanta, 76 Ga. 181.

Its general power must be restricted by the nato Public grants are to be strictly construed; the ure and object of its institution. Korn v. Muto grantee can take nothing except what his grant Assur. Society, 10 U. 8. 6 Cranch, 192 (3 L. ed. 195). plainly gives. Lehigh Valley R. Co. v. Orange Wa. A corporation cannot enter into a partnership, ter Co. 5 Cent. Rep. 651, 42 N. J. Eq. 205; Jersey City unless under authority expressly conferred by a Gas Light Co. v. Consumers Gas Co. 4 Cent. Rep. statute or its charter. Mallory V. Hanaur ou 330, 40 N. J. Eq. 427; Leslie v. Lorrillard, 1 L. R. A. Works, 86 Tenn. 598. 456, and note, 110 N. Y. 519.

A manufacturing corporation cannot act as In doubtful points the construction of the grant agent to sell for another. Westinghouse Mach. Co. must be against the grantee. Oregon R. & Nav.

v. Wilkinson, 79 Ala. 312. Co. v. Oregonian R. Co. 131) U. S. 1 (32 L. ed. 8:37).

A promissory note taken by it from a purchaser, Corporations possess only the powers conferred for the agreed price, payable to itself, is void; and by the statute crenting them, and those necessarily the manufacturer cannot maintain an action on its implied. Huntington v. Nat. Savings Bank of D. either against the maker, or against the corporaC.96 U. S. 388 (24 L. ed. 777); Beaty v. Knowler, 29 tion as indorser. Ibid. U.S. 4 Pet. 152 (7 L. ed. 813); Runyan v. Coster, 39 U.

So a mining and lime manufacturing company S. 14 Pet. 122 (10 L. ed. 382); Perrine v. Chesapeake has no right to carry on a mercantile business and & D. Canal Co. 50 U. 8. 9 How. 172 (13 L. ed. 92).

purchase goods to be resold; and a person selling Their powers are such only as are not possessed goods for that purpose does so at his peril. Che in common with individuals and partnerships, or

wacla Lime Works v. Dismukes, supra. natural persons. Southern Pacific R. Co. v. Orton, Corporation cannot deal in stock of other corpor 22 Fed. Rep. 457. A corporation has no implied authority to engage

ations. in any business other than the particular enter- A corporation cannot purchase or hold or deal prise for which it is chartered, or to do any act or in the stock of other corporations, unless expressly make any contracts not in pursuance of the pur- / authorized by law. Brice, Ultra Vires, 95. poses for which it was created. Chewacla Lime A corporation cannot subscribe for stock, or be

lin Co. v. Lerniston Sav. Inst. 08 Me. 43; Central | v. Gildersleere, 19 Grant, Ch. 212; Langdon v. R. Co. v. Collins, 40 Ga. 582; Hazlehurst v. Branch, 37 Fed. Rep. 449; Chambers v. FalkSarannah, G. & N. A. R. Co. 43 Ga. 13: Wilks ner, 65 Ala. 448; Hafer v. New York, L. E. & v. Georyia Pac. R. Co. 79 Ala. 181, and cases W. R. Co. 19 Abb. N. C. 456. there cited.

The provisions of a private Act, of which Stone, Ch. J., delivered the opinion of the Dature are all charters of private corporations, court: to be available before a court of equity, must This suit was commencer October 27, 1887, be pleaded and proved.

and is prosecuted by stockholders of the Meml'erry v. Neon Orleans, M. &C. R. Co. 55 Ala. pbis & Charleston Railroad Company, repre428; McDonald v. Mobile L. Ins. Co. 56 Ala. senting a minority of the stock. The case was 468.

submitted in the court below on a demurrer to The laws of Alabama provide that in the the bill, and on a motion to dismiss it for want case of connecting or continuous railroads, tbe of equity. From the chancellor's decree overcorporations controlling them may maké ar. ruling the demurrer, and refusing to dismiss rangements either by amalgamation or some tbe bill, or to dissolve the injunction, the presotber arrangement for bringing them under ent appeal is prosecuted. Coming before us one control.

in this form, we must treat as true all the averAla. Code, SS 2008-2011.

ments of the bill which are well pleaded, and These sections would not permit even a con- in the further progress of this opinion they will Bolidation, because these two roads have no be stated as facts. physical connection. Such physical connec- The Memphis & Charleston Railroad was tion is essential to the operation of the Statute. constructed under charters obtained from the

Wilks v. Georgia Puc. R. Co. 79 Ala. 181. States of Tennessee and Alabama, and extends

Sucb statutory provisions do not authorize from Mempbis, in Tennessee, to Stevenson, in the purchase of stock.

Alabama, running parily through Mississippi. diuckintosh v. F'lint & P. M. R. Co. 34 Fed. One hundred and fifty miles of the track are Rep. 582, 615.

in Alabama. The entire length of the road is The limitation of corporate power to own not shown. The capital stock is $5,312,725, the stock of another corporation is as stringent divided into 212,509 shares, of $25 each. Of upon a foreign as upon a domestic corporation. these shares, 106,201, being a majority of the

Pall v. Virginia, 75 U. S. 8 Wall. (19 L. whole number, stiind on the books in the name ed. 357); White v. Howard, 46 N. Y. 144. of the East Tennessee, Virginia & Georgia Rail

The complainants have a standing in court road Company, another corporation, which to prevent an infraction of lhe law of Ala- does not connect with or touch the Memphis & bama probibiting the ownership of Memphis & Charleston Railroad at any point. The comCharleston stock by the East Tennessee. plainants bold 8,800 of the shares, representing

Vitbank v. Nein York, L. E. & W. R. Co. 64 $220,000 of the capital stock; and they sue in How. Pr. 20; Nathan v. Tompkins. 82 Ala. 437; Their names, and in the dames of such other of Central R. Co. v. Collins, 40 Ga. 582; Hinckley the stockholders as may join in the suit.

a corporator, of another corporation under the view to prevent its construction, is illegal and General Railroad Law. Central R. Co. v. Pennsyl. void. Langdon v. Central R. & Bkg. Co.2 L. R. A. vania R Co. 31 N. J. Eq. 475.

120, 37 Fed. Rep. 449. A corporation cannot vote upon the stock of As contracts tending to create a monopoly. another corporation without express statutory au- see note to Gulf, C. & S. F. R. Co. v. State (Tex.) 1 thority, even if it bas acquired the shares lawfully L. R. A. 849. in payment of, or as security for, a debt. Woods A voluntary association organized to control corv. Memphis & C. R, Co. (Ala.) 5 R. R. & Corp. L. J. porations, having obtained the stock of a corpora872.

tion has no power to sell or alienate such stock, as It cannot, unless authorized by statute, make a such act is inconsistent with the purposes of its valid subscription to the capital stock of another creation. Gould v. Head, 38 Fed. Rep. 866. corporation. Valley R. Co. v. Lake Erie Iron Co. A statute forbidding one corporation to sub1 L. R. A. 412, 46 Ohio St. 44.

scribe for or purchase tbe stock or securities of So a bank corporation cannot purchase the stocks another corporation does not apply where one has of other corporations to sell them for a profit, or made advances on the mortgage bonds of the other to ruise money, except when received in good faith which it is unable to redeem, and further advances as security for a loan. Talmage v. Pell, 7 N. Y. are made. Taylor Co. Ct. v. Baltimore &0. R. Co. 828.

35 Fed. Rep. 161. Ap insurance company cannot subscribe for the So a railroud company cannot, without authorstock of another insurance company. Berry v. ity expressly given, lease its road-bed, rolling stock Yates, 24 Barb. 200.

and franchises, nor release itself from its duty and A general insurance, commission and brokerage obligations to the State. Thomas F. West Jersey agency cannot sulscribe to the stock of a savings R. Co. 101 U. S. 71 (25 L. ed. 9501; Black v. Delaware and building association. Mechanics & W.M. Mut. & R. Canal Co. 22 N. J. Eq. 130; Troy & B. R. CO.r. sav. Bank v. Meriden Agency Co. 24 Conn. 159. Boston, H. T. & W. R. Co. 86 N. Y. 107; Abbott i.

The power of a railroad company to buy the Johnstown, G. & K. H. R. Co. 80 N. Y. 27; People stock of another railroad company must be ex- v. Albany & V. R. Co. 77 N. Y. 232. pressly given by its charter. Hazlehurst v. Savan- A lease made by one railroad corporation to nah, G. & N. A. R. Co. 43 Ga. 57; Central R, Co. v. another, neither of which is expressly authorized Collins, 40 Ga. 583.

by law to enter into the lease, is ultra vis and Under the provision of the Constitution of void. Pittsburgh, C. & St. L. R. Co. v. Keokuk & Georgia inhibiting the purchase by one corporation H. Bridge Co. 131 U. 8.371 (33 L. ed. 157); Oregon R. of the shares of another, and thereby promoting & Nav. Co. v. Oregonian R. Co. 130 U. 8. 1 (82 Led a monopoly, a purchase by a railway company of a 837). contract to construct & competing line, with a

The Memphis & Charleston Railroad bas The bill insinuates that each of the two suits been in operation for a third of a century. damed above was collusive, at least in part; The profits of the corporation, if any, prior to and facts averred point in that direction. It is the time of its passing under the control of tbe also averred that certain shares of the stock East Tennessee, Virginia & Georgia Railroad which were held by the Memphis & Charleston Company, bereafter shown, we have no certain Company in its own right were transferred by means of ascertaining, further than that from the common president of the two companies to June, 1858, two years after the completion of the East Tenvessee, Virginia & Georgia Comthe road, to June, 1861, the pet earnings were pany, without any authorily therefor. Marked never less than 10, and once as high as 16, per bias and partiality in favor of the latter comcent. We bave no account of any earping dur. pany are charged to bave prevailed in these ing the civil war, from 1801 to 1855, and sup- transactions; and it is also charged that the pose pot only that there were po net profits, Eust. Tennessee, Virginia & Georgia Company but the cessation of hostilities left the road very was without the power to acquire and own much out of repair. Extraordinary expendi- stock in anotber railioad company. It is extures became necessary to repair and equip the pressly charged that the intent and pur. road, and up to June 30, 1867, the expendi pose of the said purchase of stock was to tures exceeded the receipts. Beiween the years give to the East Tennessee, Virginia & ending June, 1868, and June, 1874, surplus prof. Georgia Company a controlling vote in the its, ainounts not showd, were earned by the management of the Memphis & Charleston road each year, except the two years 1871 and Company; and the exbibit taken from the rec1872. The sum of the deficiency for these two ord of the suit with the Knoxville & Ohio years was about $150,000.

Railroad Company, if correctly set forth, The East Tennessee, Virginia & Georgia Rail. proves this charge to be true. The bill fur. road Company obtained its charters from the iher charges that after the agreement of lease States of Tennessee and Alabama, and had noted above, which was in 1877, the two rail. been many years in operation. It extended roads have been operated under one and the easterly far beyond Knoxville, Tenn.; and hav. same president, and under one and the ing absorbed, or otherwise obtained control of, same management. Inequality and fraud are the Selma, Rome & Dalton Railroad, an Ala charged in the combined management of the bama corporation, extended, in a southwesterly lwo roads, greatly to the protit of the East direction, 150 miles or more into Alabama, Tennessee, Virginia & Georgia Company, and terminating at Selma, in this State. It also to the equal detriment of the Memphis & operaied a line which touched at Chattanooga, Charleston Company. The bill makes specific in the State of Tennessee, eastward from Ste cbarges of partiality and maladministration, vepson, and distant from it 25 or more miles. as follows: First. When the East Tennessee, There was, however, a connecting line between Virginia & Georgia Company acquired conthe respective termini, but it belonged to an trolling power over the Meinpbis & Charleston other railioad corporation. The East Ten- Railroad, tbe repair shops of tbe latter bad nessee, Virginia & Georgia Railroad Company been partially destroyed, but could have been had probably many other extensions and con rebuilt at a small expenditure. They were nections, not necessary to be noticed here. The not rebuilt. The rolling stock of the Memphis extent, distances and connections of the East & Charleston Company was carried to the shops Tennessee, Virginia & Georgia Railroad Com- of the East Tennessee, Virgiuia & Georgia pany are stated partly on general knowledge. Company, at Knoxville, Tenn., “where ibe About 1874, one Wilson was electe'l president repairing was done at extravagant prices, and of the Memphis & Charleston Railroad Com milage was charged for all ibe distance ille pany, and was continued in the office until rolling stock was carried over the road of the 1881. His election was procured through the East Tennessee, Virginia & Georgia Railroad instrumentality of the East Tennessee, Vir Company.” Second. “The rolling stock (of the gioia & Georgia Railroad Company, and, al. Mempbis & Charleston Company) was unnecthough not exactly coterminous, the two rail-essarily increased, at exorbitant cost, ($500,000 roads have been operated substantially under at one time,) and was used by the East Tenone manag ment ever since. In the tirst in nessee, Virginia & Georgia Raisroad Company stance, the Memphis & Charleston Railroad upon its own road, without any compensation" was let by lease to the East Tennessee, Vir 10 the Memphis & Charleston Railroad Com. ginia & Georgia Company, the rent agreed on pany for such use. Third. “The Memphis beir the net income of the former road above & Charleston Railroad was renewed with steel expenses. In a suit instituted for the purpose rails, iron bridges and ballast, in advance of the of testing the legality of that lease, it was set needs of the railroad, to keep down the apaside as being ultra vires. Apoiber suit, be parent net earnings." Fourth. Less than the tween the Knoxville & Ohio Railroad Company pro rata milage share of through passenger and the East Tennessee, Virginia & Georgia and freight receipts from passengers and g ods Company, to which the Memphis & Charleston passing over boih roads was allowed to the Company was not a party, resulted in the ac- Memphis & Cbarleston Railroad Company. quisition by the East Tennessee, Virginia & The bill then proceeded to show, by tabu. Georgia Company of a large volume, nearly lated statement and otherwise, that the percent. one balf, of ibe shares of stock in the Mem- age of net earnings, compared with the gross phis & Charleston Railroad Company. Later income of the Memphis & Charleston Com. acquisitions placed a majority-a bare major- pany, was much less than that of the East ity-of the entire stock of tbe latter Company Tennessee, Virginia & Georgia Company, while in the name and asserted ownersbip of the East the former was more favorably circumstanced Tennessee, Virginia & Georgia Company. for cheap operation than the latter. The bill charged that at the election of officers of the operate a railroad without the State; or, withDemplis & Charleston Company, held in Nov. in the State, may extend its road, or may build, ember, 1886, the East Tennessee, Virginia & construct and operate branch roads from any Georgia Company succeeded in electing seven point or points on ils line." Section 1587. of its own directors to be directors of the It is not contended that any of these sections, Memphis & Charleston Company, seven being or all of them combined, confer in terms the a majority of the board. The directors then powers whicb the bill alleges that the East eleciéd Thomas to be president of their board, Tennessee, Virginia & Georgia Company claims he being at the same time president of the and exercises in the management and control of board of directors of the East Tennessee, Vir- the Mempbis & Cbarleston Company. The ginia & Georgia Company. The two railroads conduct cbarged and complained of was pot were thus placed substantially under one and the consolidation of two or more roads; for conthe same government.

solidation was neither effected nor attempted, As we have said, ihe bill in this case was por were any of the steps taken which the Statfiled on the 27th day of October, 1887; and it ute prescribes as conditions precedent to lawcharges tbat another election of directors would ful consolidation. Nor was it the connecting be held on the 17th day of November Iben of two roads over which cars could pass "condext epsuing - twenty one days after the filing tinuously without break or interruption." It of the bill. It charges, suriber, that “if said was not giving aid by one corporation to East Tennessce, Virgivia & Georgia Company, another “in the consiruciion of its railroad, for its directors, or any person on its behalf, sball the purpose of forming a connection with” it. be permilled to participate, or take any part, in Neither the aid nor the purpose existed in this said election, or any meeting of the stockhold. case, if the averments of the bill be true. It ers of the Memphis & Charleston Railroad was not a lease or purchase of the Mempbis & Company, the hanefu! control of the East Charleston Railroad, or any part of it; and if Tennessee, Virginia & Georgia Company over such lease, or purchase or other arrangement its affairs will be continued for another year, bad been attempted, the lines of the two roads and its legitimate earnings will be diveried are not connected. And the avermenis of the from its stock bolders, and, under various de bill negative the idea that any of these arrangevices, absorbed by the East Tennessee, Vir- ments, connected operation or consolidation, gipia & Georgia Company.” The prayer for in. if claimed to be such, were agreed to or conjunction is two fold: first, that the East Ten. suumated by the corporations, acting as such. nessee, Virginia & Georgia Company be en-Nor was there any agreement, or attempted joined from voting the stock standing in its arrangement, eitber expressed or implied, ihat name, either in the election of directors of the the one railroad slo id acquire, hold and Memphis & Charleston Company or in any operate the other. Nor is the Memphis & other meeting of the stock bolders; and, second, Charleston Railroad, in any sense, a branch that it be enjoined from disposing of its stock road from any point on the line of the East except with the knowledge and approval of the Tennessee, Virginia & Georgia Company. It chancery court. The reason urged in favor of is not a branch road, according to tbe averthe second of the above prayers is that with ments of the bill. out such restraining oriler ile stock might, and We repeat, the sections of the Code we probably would be transferred to some other have been commenting on do not expressly Dame, and sull beld, and its voting power ex- confer the powers wbich the complainants ercised in the interest of the East Tennessee, complio of as abuses, nor does the East TenVirginia & Georgia Company. Under some nessie, Virginia & Georgia Company contend reorganization, the present corporate name of that they do. It could not so contend. 119 the latter company is “The East Tennessee, I precise contention is that those Statutes "evi. Virginia & Georgia Railway Company." dence a setuled policy of the State to encourage

Under the Statutes of this State (Code 1886, consolidutions or combinations of connecting $S 1583, 1586, 15-7) a general power is con- lines." It is manifestly true that long conferred to consolidate two or more railroads pecting lines of railroad are a benefaction. which, when completed, “may admit the pass. They economize time and labor, and thereby age of burden or passenger cars over any lwo lessen expei se. Common observation, and or more of such roads continuously, without the simplest processes of reasoning, show this to break or interruption." Section 1593. A be loo clear to require argument in support of railroad corporation "may at any time, by it. But does the conduct complained of in means of subscription to che capital stock of Ibis case encourage or promote ihe consolidaany other corporation or company, or other tion of connecting lines? Is it a legitimate wise, aid such coi poration or company in the means of accomplisbing that end? Private construction of its railroad, for the purpose of corporations cau exercise only such powers as forming a connection with the road owned by are conferred upon them, and such as are such corporation or company furnishing aid; necessary and proper to carry the granted or any railroad corporation organized in pur-powers into effect. In ibis, however, is insuance of law may lease or purchase any partcluded the inberent incidental power of doing or all of any railroad constructed by any other and performing such acts as are necessariiy imcorporation or company, if the lives of such plied in the line of trade or business of the corroads are continuous or connected.” Section poration, as shown by the charter or law of its 1586. "A corporation now existing, or wbich creation. Wilks v. Georgia Pac. R. Co. 79 may bereafter be organized, for the building, Ala 180; 3 Brick. Dig. 159. constructing and operating a railroad, bas Based on ibis principle, it is contended for authority, for the purpose of extending its line appellee that the Easi Tennessee, Virginia & or forming a connection, to acquire, hold and Georgia Company had no power to acquire

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