2. A foreign corporation, having no charter from the state of Ohio, authorizing it to construct and operate a railroad in this state, cannot, by a transfer of a portion of a railroad already constructed in the state by legal authority, acquire a right to use and operate such railroads within this state. 3. The plaintiffs, being authorized to construct and operate a railroad from Cincinnati to Vincennes, and the defendants, being authorized to construct and operate a railroad from Indianapolis to Lawrenceburg, of a different gauge, entered into a contract whereby the defendants, in consideration of being allowed to lay a third rail on the road of the plaintiffs, to furnish motive power for hauling the cars of the defendants on that part of the road, agreed, among other things, to lend to the plaintiffs $30,000, for the purpose of erecting a depot for the plaintiffs in Cincinnati, to become the property of the plaintiffs at the expiration of the contract; to form no connections at or beyond Lawrenceburg prejudicial to the plaintiffs; and to give the plaintiffs exclusive control of the employees of the defendants while on the road of the plaintiffs. Held, on the construction of the charters of the plaintiffs and defendants, that such contract was beyond the competency of the contracting parties, and was void. 4. The contract also provided, that the defendants should have the use of a depot and certain grounds in Cincinnati for unloading goods and lumber, for thirty years. Held, that this created an easement in the land, and was, in connection with the laying and keeping up the third rail, in substance a lease, which the plaintiffs had no authority to make, and that it being for more than three years, was also invalid under the statute of frauds, for the want of legal acknowledgment. Held, also, that the defendants having as a foreign corporation no right to accept a lease of a railroad in Ohio, the plaintiffs could not have had a specific performance of the agreement, the remedies of the parties not being mutual.3 3 We can see no good ground to question the soundness of the foregoing opinion; but it seems to us that the case exhibits in a strong light the embarrassments constantly resulting from having railway corporations restricted in their corporate functions to the limits of state lines. It would certainly seem that there is far more necessity and propriety in having all the railway corporations in the country possess a national character, than there is in giving the SECTION VIII. Companies exonerated from Contracts, by Act of the Legislature. § 149. It seems to be conceded that a railway company may plead a subsequent act of the legislature, in bar of the performance * of their covenant or contract. But it will afford no bar, unless the act either expressly, or by clear implication, renders the duty of the contract unlawful or comes in conflict with it.1 same character to all the banks of the country, which has been already practically effected by means of discriminating taxation. There is every reason to regard railways as national institutions, in almost every sense in which they possess a public character, or perform public service, with the single exception of intercommunication, which is mainly of local and state concern. 1. As one of the wonderful advancements of military operations in modern times, by which railways have wrought a complete change in the conduct of war, and have become an indispensable necessity, they are entirely of a national character, so much so as to exclude all state control in times of war or civil commotion. 2. In regard to postal communication, which has been regarded as exclusively of a national character, since the early and palmy days of the Persian monarchy, where public posts are said to have originated, railways must also be regarded as an indispensable necessity. For if we admit the right of state control over all or any considerable portion of the railways in the country, it will place all postal communication at the mercy and good will of state authority, which any one must see is wholly inadmissible. We discussed the rights of railway corporations in regard to acquiring land and other prerogative rights in adjoining states, without the action of the legislature, in a case in Vermont, many years since, when we came to the conclusion that no such prerogative rights could be acquired out of the state of the charter, except by legislative act. State v. B. C. & M. Railw., 25 Vt. R. 433. This will not preclude such corporations from acquiring the title of land out of the state, by voluntary contract, or entering into any other contract, of the ordinary character of contracts between natural persons, but it will not justify taking land compulsorily, or operating a railway and taking tolls, &c. Wynn v. The Shropshire Union Railw. & Canal, 5 Exch. 420; Stevens v. South Devon Railw., 12 Eng. L. & Eq. 229. But where one was induced to give lands to a railway company, or subscribe for stock, and the essential inducement to make the contract was that the company should construct their road within some definite time, the extension of time for the construction of the road, by act of the legislature, will not exonerate the company from their obligation to such person. Henderson v. Railw. Company, 17 Texas R. 560. SECTION IX. Width of Gauge. - Junction with other Roads. 1. Where the act requires broad gauge, does 4. Contract to make gauge of the companies not prohibit mixed gauge. 2. Permission to unite with other road, signi fies a road de facto. 3. Equity will sometimes enjoin company against changing gauge. the same, although contrary to law of state, at its date, may be legalized by statute. § 150. 1. Where the company's special act required them to lay down a railway of such gauge and construction as to be worked in connection with another company named (the broad gauge), a court of equity declined to interfere, by injunction, when the company were laying down part of the line with double tracks of the mixed gauge, there being no prohibition in the act against such a construction, the broad gauge being all which was required by the act.1 2. Where the act of incorporation gave the company the right to construct a road in a particular line, and also required them to purchase a former railway along the same route, and gave them the right to connect "their road with any road legally authorized to come within the limits of the city of Erie," it was held that this right extended equally to the road purchased or built by them, and that they had the right to connect with any other railway in the actual use of another company in Erie, without inquiry whether such company were in the legal use of their franchises at the time or not. That is a question which cannot be inquired into in this collateral manner.2 3. Where two railway companies agree to operate their roads. in connection, between certain points, if one of the companies changes its gauge, so as to break up the connection contemplated, an injunction will be granted to enforce the contract.3 * 1 Great Western Railw. v. Oxford, Worcester, & Wolverhampton Railw., 10 Eng. L. & Eq. 297. 2 Cleveland, Painsville, & Ashtabula Railw. v. The City of Erie, 27 Penn. St. 380. * Columbus, Piqua, & Ind. Railw. v. Ind. & Bellef. Railw., 5 McLean's C. C. R. 450. 4. A contract entered into by railway companies to make the gauge of both the companies the same, is not illegal, although this be contrary to the law of one of the states, if the contract to have been made with reference to an alteration of the powers of the company, in that respect, and that such alteration was procured before any part of the track was laid.s appear |