3. But even where such contracts have been made, by permission of the legislature, it has been held, in this country, that the company leasing itself does not thereby escape all responsibility to the public. But that the public generally may still look to the original company, as to all its obligations and duties, which grow out of its relations to the public, and are created by charter and the general laws of the state, and are independent of contract or privity between the party injured and the railway.

But there seems no good reason to excuse the company, assuming to act as common carriers, by virtue of the lease of another company's road, from the ordinary responsibility of common & Birm. Railw. v. London & N. W. & Shropshire Union Railw., 21 Eng. L. & Eq. 319; s. c. 1 Eng. L. & Eq. 122.

But see cases ante, n. 5; post, § 185.

• Nelson v. The Vermont & Canada Railw., 26 Vt. R. 717. But it is, perhaps, worthy of consideration, in regard to this case, that the effect of legislative consent to the lease is not made a point or decided in this case. Sawyer v. The Rut. & Burl. Railw., 27 Vt. R. 370. And in Parker v. Rensselaer & Saratoga Railw., 16 Barb. 315, where the defendants were running upon the Saratoga & Sche. Railw. by virtue of a contract, and the plaintiff's cow was killed through defect of cattle-guards, which it was the duty of the Saratoga & Sche. Railw. to maintain, it was held the defendants were not liable, the neglect being attributable to the Saratoga & Sche. company. Perhaps the only question in regard to the soundness of this decision is, whether both companies are not chargeable with negligence, the one for suffering the road to be used, and the other for using it in that condition. This is the view taken of the law in Clement v. Canfield, 28 Vt. R. 302; ante, § 169. Ohio & Miss. Railw. v. Dunbar, 20 Ill. R. 623.

But in the York & Maryland Line Railw. v. Winans, 17 How. 30, it is decided, that where a railway is chartered by one state, and all its stock owned and the road operated by a corporation erected and existing in another state, the first corporation is nevertheless liable to the patentee of an improvement in railway cars for the use of his patent, cars of that construction having been procured and used upon the road by the corporation owning the stock of such company. Campbell, J., said, “The corporation cannot absolve itself from the performance of its obligations, without the consent of the legislature."

But one company giving permission to another to use a part of their track, do not thereby become bound to keep the track in such repair as to be safe for use. Nor do such company thereby assume any obligation towards the passengers carried thereon by such other company. Murch v. Concord Railw., 9 Foster, 9; post, § 183. See also Briggs v. Ferrell, 12 Ired. 1. And in Vermont Central Railw. v. Baxter, 22 Vt. R. 365, the company are held liable for the acts of the contrator in the exercise of the right of eminent domain, in obtaining materials for constructing the road.

carriers for the transportation across the portion of the route held by lease, on the ground of the responsibility of the company owning and leasing the road, even when the loss occurred from the default of the latter company in not performing the stipulations in their lease. Nor can the lessees of a railway excuse themselves from responsibility in such cases on the ground that their lease is void, being taken without the sanction of the legislature.9

And a railway company is always responsible for an injury occasioned by want of proper care and prudence on the part of its servants, in the management of a train which is under their exclusive care, management and control, although belonging to another company.10 But if such injury is occasioned by the negligence of another company, whose car, for the purpose of being loaded by the plaintiff, has been placed upon a side track of defendant's which is in constant use by other roads, that other company is bound to use reasonable care to prevent a collision, and if it fails to do so, whereby the plaintiff receives an injury, he cannot recover of the company whose cars caused the collision.10 And if such injury results from the negligence of another company, which has a joint right with the defendants to use defendant's track, under a lease, and which is running trains over defendant's road on its own account, the defendants are not responsible.10

There can be no question of the liability of the company leasing another line of railway, whether within or beyond the limits of the state where the first company exists, for all acts and omissions whereby injury accrues to other parties, while so operating such other line, as lessees, to the same extent and in the same manner precisely as if such injury had occurred upon the line of the first company. And it seems to be the inclination of the American courts to hold this in regard even to those companies who have assumed to operate the roads of other companies, whether temporarily or permanently, and whether by express legislative sanction or not. This subject is very extensively discussed in the case last referred to, and the views presented,

• McCluer v. Manchester & Lawrence Railw., 13 Gray, 124.

10 Fletcher v. Boston & Maine Railw., 1 Allen, 9.

11 Bissell v. Mich. So. & N. Ind. Railw., 22 N. Y. Court of Appeals, 258.

although differing somewhat from those hitherto adopted by the English courts, certainly have very much to commend them to favorable consideration. But the original company will be responsible even for the safe delivery of goods carried over the line, where it is leased to a corporation out of the state.12

* 4. The English courts have in some instances even restrained railway companies from carrying contracts of leasing into effect, without the authority of the legislature.13

5. But such contracts being legal, and not inconsistent with the policy of the acts of parliament, are to have a reasonable construction; and where, by the creation of new companies and other facilities, the business is very largely increased, the parties are still to abide by the fair construction of the original contract, as applicable to the altered circumstances.14

6. There is no doubt of the right of a railway company in England to apply to the legislature for enlarged powers, even for the power to become amalgamated with other companies, so as to make one consolidated company. And contracts between the different companies, for this purpose, have been there recognized, and enforced, in courts of equity.15 And while the courts of equity will * enjoin the companies from applying their funds to pay the expenses of such parliamentary proceedings; they will not enjoin them from obtaining additional powers, by legislative acts, when other parties volunteer to furnish the requisite funds.16 And there seems to be no question made, in the English courts, of the power of parliament to extend the line of a railway, or to consolidate existing companies, and that the shareholders are bound, by the acceptance of such legislative provisions, by a majority of the company, or by contracts to procure such powers by act of parliament.17

12

Langley v. Boston & Maine Railw., 10 Gray, 103.

13 Winch v. Birkenhead, L. & C. Railw., 13 Eng. L. & Eq. 506; Beman v. Rufford, 1 Simons (N. s.) 550; s. c. 6 Eng. L. & Eq. 106.

14 East Lancashire Railw. v. The L. & Yorkshire Railw., 25 Eng. L. & Eq. 465. 15 Mozley v. Alston, 1 Phillips, 790, where Lord Cottenham said: "There is scarce a railway in the kingdom that does not come to parliament for extension of powers.”

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16 Stevens v. South Devon Railw., 2 Eng. L. & Eq. 138; Great Western Railw. v. Rushout, 10 Eng. L. & Eq. 72; post, § 252.

17 Great Western Railw. v. Birm. & Oxford Junction Railw., 5 Railw. C. 241.

* 420, 421

7. And it has accordingly been held, that a public company, as the commissioners of sewers for a county, might impose a rate to defray the expense of opposing a bill, in parliament, which threatened to affect the interests of the company unfavorably, the same as they might to defray the expense of litigation in court.18 Lord Campbell said: "Our determination rests upon the ground that this opposition was clearly bonâ fide, and clearly prudent."

*

8. In a very recent case, in Vice-Chancellor Wood's court,19 The Lord Chancellor says, that to nullify, in a court of equity, all contracts made upon the faith of obtaining the consent of the legislature to carry them into effect, would be "to nullify many family agreements, and all contracts by persons projecting new companies." Shrewsbury & Birm. Railw. v. London & N. W. Railw., 9 Eng. L. & Eq. 394.

And it has been held, in an important case in the Circuit Court of the United States, Columbus, Piqua. & Ind. Railw. v. Indianapolis & Bellefontaine Railw., 5 McLean, 450, that an agreement between two railway companies to build their roads from certain cities, to meet at a given place, and that the charges for transportation shall be regulated by both companies, and also the meeting of the cars, and the through freight cars, is a valid contract, and will be enforced by injunction in equity. That to fix the charge for the transportation of passengers and freight, is the exercise of the corporate franchise of each company, and an agreement that both companies shall regulate this is no abandonment or transfer of the franchise of either.

The ground upon which franchises of corporations

18 Reg. v. Commissioners of Norfolk, 15 Q. B. 549. the decisions in England and America, which hold the not to be assignable except by consent of the legislature, rest, is mainly the same as that upon which it has been held in this country, that such franchises are beyond legislative control, namely, that the charter constitutes a contract between the sovereignty and the corporation, on the one part, for the grant of certain privileges and immunities, and upon the other for the performance of certain duties and functions, which are deemed an equivalent or consideration. And this feature is of peculiar force in the case of that class of corporations upon which the legislature have conferred important public duties and functions, as railways and banks, and some others. The state confers upon a railway some of its most essential powers of sovereignty, that of eminent domain, and of a virtual monopoly in transportation of freight and passengers, and in return therefor stipulates for the faithful performance of these duties by the corporation. The corporation have no more right, in equity and justice, to transfer their obligations to other companies, or to natural persons, than the state have to withdraw them altogether. Either would be regarded as an abuse of the powers conferred, or an impairing of the just obligation of the contract resulting from the grant, and its acceptance.

19 Leominster Canal Co. v. Shrewsbury & Hereford Railw., 29 Law Times * 422

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the defendants entered into an agreement to purchase plaintiffs' property, there being at the time no legislative permission either to buy or sell such property. Subsequently such permission was obtained, and steps taken by the defendants, under the act, to carry the contract into effect, but they ultimately refused to complete their purchase, on the ground that the original agreement was not under the seal of the corporation, nor signed by two of their directors. The plaintiffs then filed a bill for specific performance, and it was held, that the bill must be dismissed, on the ground that the contract was originally ultra vires, not being made dependent upon obtaining the consent of the legislature. It is also said, that the contract would not be binding upon the company, unless made under their common seal, that being required in the defendants' special act, and if it were binding, that mandamus is the more appropriate remedy.

9. A railway company cannot acquire the franchise, so as to be bound to perform the duty of an existing ferry, without the authority of the legislature, given either expressly, or by necessary implication.20

10. And the grant to a railway company, having its terminus at the bank of the river Hudson, opposite the city of Albany, of power to connect its terminus upon one side of the river with a depot upon the opposite bank; though it does, by implication, give the right to establish a ferry, does not make it a part of the railway, so that passengers crossing the river may be regarded as carried under the general railway franchise.

11. And where the grant of such a ferry was restricted, by express condition, to the transportation of freight and persons carried by the railway, and their servants and employees, it was held that the company, by constantly carrying other persons gratuitously across their ferry, were guilty of an infringement of the 342, August, 1857. The learned judge concludes his opinion in this case in a manner very creditable to his sense of fair dealing and good faith in the conduct of railway directors: "I cannot, however, but feel that solicitors acting for railway companies, like that of the defendants, must be in a most painful position when they are unable to rely (as here they cannot) upon the good faith or even the common honesty of directors.”

to Battle, J., in State v. Wilmington & Manch. Railw., Barber, 234.