GBSON PEACOCK. .Eclitoz VOLUME XIX.---NO. 268. tHE GREAT RAfLROAD CASE. Philadelphia and Erie Railroad Com pany and Pennsylvania Railroad Company vs, The Catawissa and the Western Central Railroad Company,' of Pennsylvania, and the Atlantic and Great Western Railway, of • Ohio,New York and Pennsylvania, IDecision in Favor of the Plaintiffs. Opiriion of Justice Read at Nisi `Prius To-Day. SIIPREAE COURT OF PENNSYLVANIA IN AND FOR - THE EASTERN DISTRICT.—January Term, 1866.—1 n Equity.—The Philadelphia and Erie Railroad Com• -- isany vs. The Catawissa Railroad Company and The Western Central Railroad Company of Pennsylva ads, and The Atlantic and Great Western Railway Company of the States of Ohio, New York and Penn isylvania. Andrew Scott vs. the same Read, J. The real question is this case is whether the rail- Toads of the Atlantic and Great Western Railway Company and the Philadelphia and Erie Railroad Company , are connecting roads within the meaning of the Acts of Assembly of the lath March, 1547. the :29th March, 1859, and the 23d April, 1861: for, if they are ,such connecting.roads, then the hrst-named road is connected by means of an intervensng railroad with the Catawissa Railroad, which is uaguestionably di. zerGy connected with the road of the Philadelphia *nd Erie Railroad Company. The road .of the Atlantic and Great Western inter sects the Philadelphia and Erie Road at Corry, in the •county of Erie. 'Does It connect as well as intersect ? 'The one has a gauge of six ieet, and the other of four feet eight and a half inches. The one runs across the State, and by means of connecting roads forms a through line from New York to Dayton, Ohio, with further western connections, whilst the other road is entirely on Pennsylvania soil, and connects the city .-ai3d harbor Of Erie with the city and port of Philadel phia, the commercial metropolis of the State. There is necessarily a break of gauge at Corry. and the cars and locomotives of one road.cannot run noon the other road. This is a physical impossibility, as the two roads are now constructed and are proved to the Court to exist at the present moment. If all the roll ing stock of one road were by an accident destroyed, or withdrawn. the remaining road could not operate it with their rolling stock, although perfectly willing to supply the wants of the intersecting road, There can not therefore be, and there is not, any mechanical con nection between the two roads. But as the opinions of eminent engineers on both aides have been laid before us as to their understand ing of the terms "connecting" railroads or roads "di rectly or by means of intervening roads connected - with each other," it becomes necessary to look into the railroad system generally, and particularly of that of ?his State. The Liverpool and Manchester Railway, plaened and executed by George Stephenson, was opened thirty-six years ago with steam locomotive power, ;brought into successful operation by the genius and :skill of this distingnished engineer. The gauge of this road was fifty-sir and. a half inches, being that of the coal roads tler, in use. Three years afterwards Parlia anent authorized the construction of a railway from London to Birmingham. This railway was of the same gauge, and built bythe same engineers; and has .since grown into the London and Northwestern Bail- Way, with 1 224 miles of road, on which have been ex pended over fifty-two millions of pounds sterling, and .of whose management and operations a most interest- Mg account is given - in the Quarterly Review for De .cember. 1848. The half-yearly-dividend of this road for the first half of 1865 was three per cent. The scheme for the Great Western RalLeny, running from the city of Bristol to London. originated with the •corporation of the first named, place, and its principal - merchants in 1832,and was encouraged-by thecommer ,cial establishments in Ireland and Wales-transacting business with either or both of those cities. The act of incorporation was obtained on the 31st of August, 1835, and Mr. J. TI adorn Brunel, who had made the preli minary surveys, was elected as the engineer, and - ender his advice the gauge of seven feet or eighty-four inches was adopted. This was recommended by him originally, on the zround that the country would eventually oe divided into railway districts, each of which would be served by one company, and that as each district would have but little direct communication with thb others, a va riation or break of gunge would be no inconvenience, that the west of England would form one of those dis tricts—a district-4u which the traffic would be chiefly passenger traffic—that this traffic would be most satis factortly.conducted by one or two very large, trains daily. On roads where the curves were more frequent and sharp, and the mercantile traffic bore a larger pro portion to the passenger than on the western, Mr. -Brunel admitted that a narrow gauge might be .more advantageously use. A few years later he said: "It can have no connection with any other of the main lines, and the principal branches were well considered, and almost formed part of the original plan, nor can these be dependent on any . other existing lines for the traffic which trey will bring to the main trunk, and the commercial isolation of this exceptional system -was therefore contemplated and designed by the engi neer and directors." This line, therefore, d ssociated itself from the general railway system oy England, and wherever the two gauges approached each ether ocea- Monet), of coarse, a break or gauge, and a transhlpmeht of passengers ang baggage, and also of freight. whether dead or alive. In 1845 there were about 2,100 miles of railway in England in operation, of which 1,660 miles were of the 33111TOR , gauge 56.3i' inches. and 240 of the broad gauge of 84 inches. The magnitude of the nuisance was admitted, and after a discussion in the House of Commons, Mr. Cobden moved for the ap pointment of a commission, and the House subse . quently unanimously voted an address "praying her Hajonty to be graciously pleased to issue a commission to inquire whether in future private acts for the con struction of railways, provision ought to be made for securing a uniform gauge, and a commission was accordingly appointed of dir F Smith, Professor Bar low, and Professor Airy, who made their report in January, 1846. Forty-six witnesses were examined, including engi neers, locomotive manufacturers, managers, secreta ries, and carriers. Four employes of the Great Wes tern were M favor of the broad gauge, four were op posed to break of gauge, but gave no opinion about — width of guage; three were for intermediate gauge, - with no opinion as to uniformity; five were for inter mediate gauge theoretically, against broad gauge, and was favorable to uniformity, and thirty for uniform ity and a narrow gauge. They considered the improve ments already made had obviated all the difficulties - which the narrow gauge formerly presented. The • commission recommended "thrt the gauge of four - feet eight incises and a half be declared by the Legis lature to be the gauge to be used in all public railways now under constraction,or hereafter to be constructed, in Great Britain." Parliament did not make it compulsory, but estab lished by the act of 9 and le Viet. (18 Aug., 1846) with certain exceptions), the gauge of four feet eight inches and half an inch in Great Britain, and five feet three inches in Ireland, and prohibited the alteration - of the gauge of any railway fcr the conveyance or•pas• sengers. Certain railways, :including :the Great West • ern, using the gauge of seven feet, and certain others arsing a mixed gauge, were among the exceptions. 'The mixed gauge of that day consisted of adding to marrow gauge a stogie outside rail, or introducing a :mingle rail between the rails of the broad gauge. (16 Jurist, 443). The great convenience of entire uniformity of gauge in the course of a few years , became so obvious that ..l'arliament finally debermined, in 1864, that the nar ,Xowguage of 5634 inches should be the standard and only guage in England and Scotland, with the excel). tional broad gauge of 84 inches and a permitted mix ture of both. The 33d section of the Railways • t of - o nct s ed a hat E nd ryailwymade under this actin England or Scotland shall be made on the gauge of four feet eight inches and half an inch, unless in any • case the certificate provides the making of the railway -on the guage of seven feet, or on both those gauges." "Every railway made tinder this act in Ireland shall be made on the gauge of five'feet three inches."' The experience of Great Britain, with all its lines of "railway leading to one great central point, London, lies settled into an approval of one uniform narrow -gauge, with a permitted deviation to avoid a destruc tion of existing property to one broad gauge of seven feet, with a mixture of gauges intended to remedy the -evil occasioned by • the unwise, short-sighted, aggres sive, and expensive policy of Brunel and hisassociates and followers. - The continent hasrofited by the dear bought 'knowledge and experience of England, and France, 'Belgium, the Germanic States, and.ltely have adopted the uniform narrow gauge of 56% inches. The mixed gauge in England proves clearlythat the marrow gauge capnotbe inferior in real railway power to the broad gauge for passenger goods and mineral traffie,and in allbutpasseng,er traffic itis acknowledged by the Latestauthorlties to be superior for the carriage of freights of aft - kinds. • It is much less expensive in construction, and of . 'course in keeping 'la repair, and the introduction of another line of rails on the broad gauge system, to -enable them to use the narrow gauge carriages upon increasesit, InCreas the cost of the road, and the iron used for that purpose on a double track broad gauge road •:WOttldlay a third track for the road, which; on some goads, monsoon be done in that country, to accom •Moodate the- constantly increasing railway business; for it is now, becoming a question:: whether :there shall net be separate tracks for passengers and for goods sad mineral traffic, classed by Us treigh t Whenever this becomes necessary then the supe rior advantages of the uniform narrow gauge will be self-evident in the diminished width of roadway, of bridges, embankments, deep cuttings and tunnels, and the decreased cost of 'the foundation and superstruc ture. and of the rolling stink of therailway. More than twenty years ago an exceptional gauge of five feet had been introduced on one road, bat when it reached a narrow gauge road the mucous venience of break of gauge was found, and its engineer changed it to the uniform nar row gauge of 564 inches, saying, "The locomotive of this day isnot the locomotive 0f.1836; for all the put , poses for which railways can be wanted there' is addi tional space to crowd in as much power, and more than can ever be commercially beneficial. A boy may now with facility clean an engine in an hour, which would formerly take a man a day." Another eminent engineer said. think the absolute necessity of ex tending railways, now that avery road is to have a railway, rather goes to show that it is not Wis.) to make these railways of very large dimensions," and particularly with reference to extension by branches to every town and every village. Unfortunately for the Great Western these warnings of experienced engineers had no effect upon Mr. Brunel; a man of magnificent ideas, carried out not only on that road. but in the steamship Great Eastern, and on the Atmosph%“c E - 4.llway, the last two of which were entire failures at a vast cost to the unfor tunate nroprieton3, who were led awayby his engineer ing eloquence. kits examinations before Committees of the House of Commons evinced great readiness, ability, tactaud excellent temper. 'I he stockholders, or to use the English phrase, the shareholders, of the Great Western, according to their publisned reports, have suffered greatly, in a pecu niary point of view, for their pers'stent determination to retain possession of the coast of England by their exceptional gattge, and to separate themselves from the general railway system of the country. They have, however „bben forced at last, by the impossibility of sustaining this contest without an entire cessation of dividends. to become the virtual proprietors of narrow gaiwe ropds, and introduce the mixed-gauge upon large por tions of their line. "The Great Western,' says a lead ing Railway journal, "is now us much a narrow as a broad gauge rallsvg's. The Great Western curs at pre sent not only considerable lengths of purely narrow gauge railway ,but they hare laid the narrow, inside the broad, forming a mixed gauge on a large portion of . their system They have nearly as many narrow gauge as broad engines, and they are adding to the narrow gauge engines in proportion of three to one of the brawl. The narrow gauge carriages and wagons far outnumber thebroad gauge, and the narrow gauge carriage" and wagons were increased in 1864 in the proportion of 624 to' 11 of broad gauge, and tie advice tendered to them by the same journal was gradually to change the railway into a narrow gauge road by the introdut tion of the third rail, and not renewing the outer rail or the broad gauge, but let them gradually wear out. The narrow gauge; is greatly preferable for goods and mineral traffic, ana nearly, if not equal, for passenger trailic. The journalist also advised a suspension of dividends for three or four half years, as an economical method of providing money, and at the sixtieth half-yearly meeting in September-last, the dividend declared was one ptr cent., and the stock in D_cember was quoted I hate annexed to this opinion extracts from the proceedings of that meeting, and from the Railroad Journal. The South Wales part of the Great Western termin ates at Milford Haven, the point selected by one of the learned counsel for the defendant' as the eastern terminus of the proposed steamship line from this port, The South Wales hue furnishf:. the best st. , am;and lair-house coal, in relation to which the Chairman of the Great Western Company said to the shareholders. "The mineral trade from South Wales, especially hi steam coal. was largely diminished by the sudden ces. sation of the demand forblockade-runners." [Result of British Experience.] It is, therefore, the indisputable result of British experience, first, that the narrow gauge is preferable to the broad gauge, no;', only on the score of commercial convenience, but for its superior economy in making and working; second, that there should be an entirely uniform gauge over the whole railway system of the country; and third, that there should, of course, be no break of gauge. In a State like Pennsylvania. crossed and inter epersed by chains ef bills and mountains, where the passes are few and narrow, there caa be no doubt that the,only permissible gauge should be the uniform har row gauge of four feet eight and a half Inches, origt , nally fixed and adopted by the State upon the Colum bia-- Road, which regulated that of the Pennsyl vania Railroad, the Philadelphia and Erie, Northern Central, Catawissa, Philadelphia and Reading Lebanon Valley, North Pennsylvania, Philadelphia, Wilming ton and Baltimore,Germantown and Norristown, and the ' West Chester feads, all leading to, and connected with the city of Philadelphia, now covering 130 square miles of territory, with a:population of more than 80G* The State of New York. in 1824,bad nearly completed their canal from Lake Erie to the Hudson, which, with the Northern Canal, connecting Lake Champlain with the same river. .had formed their system of State inter. nal improvement In October, 1825, the Erie Canal was finished, and on the 4th of November the first canal boat arrived'at New York from. Buffalo. In 1836, ten years afterwards. the enlargement of the, canal with double locks was commenced. In 1826 a colanDany was incorporated to construct a railway from Schenectady 'to Albany, and other companies were chartered from 1833 to 1836 to form connecting roads - whichin 1851 were consolidated and fbrmed the New York Central Rail road Company. (Canal system of Pennsylvania.] In lEd4 the• first canal commissioners in this State were appointed, who recommended a canal from Philadelphia in Pitts .burgh, with a tunnel of four miles through the Alle gheny Mountains. In 1825 a new board of canal com missioners, consisting of five persons. was appointed, and the law authorizing the first board was repealed. By this second act the routes to be examined to the north and west started from the city of Philadelphia, and both tt it Western routes extended to Lake itrie, so as to connect its waters with those of the Delaware. Out of this grew our system of State International Improvement by canal and slackwater. It was soon found necessary to substitute a raiFtpad for a canal between the Schuylkill and the Suseuthanna, and the Portage road forthe Allegheny tunnel. Our mistake was in supposing that because New York had constructed a continuous canal through a nearly level country, during a period when the pr ice of labor was low, that we could effect the same object at a similar expense in a State crossed by ranges of mountains, and with a currency gradually expanding, and of course increasing the cost of labor and mate rials. So imperfect was the communication between Philadelphia and Pittsburgh, that, in 1846, the Pearl sylvania Railroad was incorporated to construct a railway from Harrisburg to Pittsburgh, so as to form, with the Harrisburg and Columbia Roads, a continu ous railway between these two points. To the stock of this road what Is now the city of Philadelphia subscribed five millions of dollars, the county of Allegheny one million, and the citizens of 'Philadelphia (business men and operatives depending upon their daily labor for support) subscribed the batance that was then deemed necesary to make the road. It was, in fact,a Philadelphia enterprise, deemed absolutely necessary for its business connections with the interior and the West, and it -was undertaken at a period when we were just beginning to recover from one of those financial collapses to which we have been periodically subjected. By the purchase of the main line of the public works from the State in 1850, this company became the own ers of the entire route from Philadelphia to Pitts burgh. and were enabled to build and complete a double track, first-class road, connecting the waters of the Ohio with tho - nof the Delaware. The tracks on the Columbia Railroad were moved further apart, so as to admit wider cars, for it was the original fault of this road, and of the Reading road, that the two tracks were brought too close together. The Harrisburg road vire: improved; and the Portage road and all inclined planes and stationary engines were dispensed with. at connects with Cincinnati by the Steubenville route, crossing the Ohio by one of the most extensive and magnificent iron bridges in the world; and by other roads with Cleveland, Chicago. St. Louis and the great West. Thus the great trade of the Westpasses into the two great cities of the Estate, Pittsburgh and Philadelphia, and thence by the connecting railway now building, the Philadelphia and Trenton, and Jersey roads to New York, withoutany transshipment whatever. During the late rebellion the Pennsylvania Railroad became the great route for the transportation of troops and munitions to andgrom tne West and Southwest. and upon three days' notice, could have furnishdd at Philadelphia, Bsltimore or Pittsburgh, accommoda tions and cars for the transportion of an army of 60,000 men from one point to the other in twenty four hours, with all their. equipments and munitions of I believe this to be correct, for in 1862 (and their capa city is now greatly increased) it was ascertained by the agent of the Camden and Amboy Company, that they could transport from Philadelphia to New York in twenty-four hours, by their roads and canal, an army of 100,000 men, with all their equipments and munitions of war. They were never called upon to transport more than 8,000 men in one day, and this was done in from five to seven hours, without interrupting their ordinary travel. (Big 20-inch gun.] Besides the transportation of the heavy guns manufactured at Fort Pitt Works, they carried the big 20-inch gun, twenty-five, feet long, weighing 116,400 pounds, and throwing solid shot of ,1,000 pounds, on cars specially cons' ranted, for the por., pose by the Pennsylvania Railroad Company, over their road to Harrisburg (248 miles), and then Valley Lebanon Valley, East Pennsylvania, Lehig and New Jersey Central Roads to Eltrabethport. New . Jersey, a total distance of 418 miles, 'without change or trans-shipment, or break of gauge. 1. [lnterest of State and city.] For the Main Line the company gave the State 17,500,000, which was increased in 1861 by the commutation for the tonnage tax, and they increased the annual payments t 01460,000, which would extinguish the whole debt in 1690. The amount still due the State is 15,700,000, secured by bonds which are a lien upon the M.ain Line. The city of Philadel phis holds 103,342 shares, equal at par to $5.167,000, being $167 000 more than her original investment, be sides having received $2,500,000 in cash, or its equiva lent, over six per cent. on the original subscription. Every original stockholder who is still one,has always received six per cent. interest for his money, besides the ordinary and extra dividends above that percent age. • The improvements already made and which are still ilrogressing on the west bank of the Schuylkill, the !unction Road, the iron bridge over the Schuyl kill. the grain elevator, and the wharves on the Dela ware, attest the public spirit and enterprise of a coin pony which has added 30 largely, to the wealth and Prosperity, of my native city. • The city - Of Philadelphia has a money interest la chi . PHILADELPHIA, MONDAY, FEBRUARY 26,.1866. road of 15,167.000, and the Stare of Pennsylvania of 6,700,000, making a total of 11,8177,000. The Sunbury and Erie Railroad Company was incor porated by an act of Assembiy of the 3d of April, 1837, to survey and fix a route for a railway from Sunbury, by way of Northumberland and Williamsport, to the harbor of Erie. In 1838 '39 an exploration and survey were made by it, and 1851 the Vs , atern and Western divisions of the road were again surveyed, and in 1852 a great effort wasmade to infuse vitality into the corp o ration. Under theprovisions of an act of 2d March, 1852, an attempt was made by the company to extend their road to E arrisburg, which was defeated by a decision of the Supreme Court, showing a prior right in what is now the Northern Central Railroad Company (Packer vs. Sunbury and Erie Railroad Company, 8 iCorris, 211.) Under an act of the 10th February of the same year, authorising municipal and other corporations to sub scribe to its stock, subscriptions were sought from Philadelphia and Erie, and other counties and boroughs on the route of the road, and upon a favor able report from a Committee of Councils who visited Erie, the City of Philadelphia subscribed two millions of dollars. The District of Richmond subscribed t 2.50,000, which, upon consolidation, merged into that of the city. The county of Erie subscribed 8200,000, and the city of Erie eno,too. and these, with some indivi dual subscriptions, formed the capital on which ope• rations were commenced, and in 1855 a very able Board found forty miles of road in good running order from Sunbury to 'Williamsport, and upwards of two hundred miles under contract. By an act of 21st of April, 1858, the state sold to the Sunbury and Erie Railroad Company, for 93,50000, all the public works of the Commonwealth remaining un sold upon certain terms, which act the Supreme Court decided to be constitutional. (Sunbury and Erie Rail road Company vs. Cooper, 9 Casey. 278.) By the act of ISth April, 1860, and of Slareb, - 1861, the indebtedness to the Commonwealth was substantially changed Into a second mortgage. for four millions o dollaYs were deposited in the State sinking fund, the name of the Company was altered to that of the Phi ladelphia and Erie Railroad Company, and they were authorized to contract with any other railroad com pany in the State in relation to the completion and working of the road. a ccordlngly, on the 6th of January, 1862, a contract and a lease and contract, were entered into between the Philadelphia and Erie Railroad Company and the Pennsylvania Railroad Company, by which the drat named Company leased their road to the second named Company for the term of nine hundred and ninety-nine years. The whole subiect Is admirably explained in the opinion of my brother Strong, in Gratz vs. the two companies, 5 Wright, 447, affirming the constitutionality of the act of Starch. 1861, and the validity of the contracts by the two companies. The trains commenced running throngu on the 17th October, 1064, although the road was incomplete in its equipments. These two roads therefore have carried out by land carriage the original intentions of the fra mers of the act of 102.5, to connect the city of Philadel phia with Pittsburg and Lake Erie by the main lino and West Branch canals. In this Boaa the State has four millions of dollars, the City of Philadelphia two million two hundred and fifty thousand dollars, and the city and county of rie five hundred thousand dollars, and both roads are Pennsylvania en erprises. p outing the trade and com merce of the West directly into the lap of the com mercial metropolis of the state. The Central Railroad of New York, from Albany to Buffalo, has 4 feet 83 inches gauge, and I believe the roads north of it, and east of the Hudson, Including the New England States, have the same uniform gauge, a lin the exception of the road from Portland joining the Grand Tronk of Canada, which has the Canadian gauge of 5 feet 6 inches. The ordinary gauge in New Jersey is 4 feet 10 inches, but the New Jersey Central has the 4 feet 5, ,, ; inch gauge, with a third rail to accommodate the Delaware, .Lackawanna, and Western. By improvements in ma chinery the cars of the narrow purge can run upon the New Jersey roads. The New York and Erie Road was planned as far back as 18. V., and the purwse was' to construct a rail road from New York to Lake Erie. through the south ern tier of counties, entirely upon New York soil, and the Company was restricted from cauttecting with any railroad either of the State of Pennsylvania or New Jersey. or leading into either of the said States, without the consent of the Legis lature of the State of New York on pain of forfeiting the powers and privileges conferred upon it. The road was commenced at Piermont, on the west bank of the Hudson river, near the New Jersey State line, and after fruitless efforts to find an available line without passing through Pennsylvania, they were allowed to construct their road through Susquehanna and Pike counties by two seta of Assembly, passed the 16th Feb ruary, 1641. and 26th March, 1846. In a similar way. it becoming necessary to secure a terminus opposite the city of New York, instead of depending upon the steamboats from Piermont, by Various lessee upon-the contracts with New Jersey Rail road Companies. sanctioned by the Legislature of that State, they were enabled to secure a terminus on the west bank of the Hudson, at Jersey City. In one of ,these agreements It is expressly stated that the object of laying one rail on each side of the present tracks of the road of the New Jersey Railroad and Transportation Company, so as to form to con junction with one call of each track, two tracks of five feet wide, is for the purpose of enaloling the New York and Erie Railroad Company to run the cars and engines *1 the said Company from their road at Sof ferns, across New Jersey, until at or near the Hudson River. at Jersey City. without change, delay, - or obstrue . rim Under a decree of foreclosure of a mortgage exe cuted by the said company,rasale sanctioned by amain' the Legislatures of New York,New Jersey and Penn sylvania, all the property and franchises of the New - York and Erie Railroad Company became vested in the present Erie Railroad Company. The gauge of this road Is six lest, an exceptional one not used in England mu in Canada. and in very few Instances in the United States. It occupied the whole southern line of the State of New York, and no 'road north or south of it, whether in New York, New Jer- S. y or Pennsylvania, could mechanically connect with it, except one of the same gunge, thus practically re fusing all such connection with all the roads previously constructed in those States. lni.tead, therefore, of toe New York Central connecting by any intervening road with the Erie, they are entirely disconnected. for the cars and engines of one road cannot run upon the other. I tTbe Erie Road is, therefore, an aggressive road, pre entiag all communication with and through it of the roads on each side, which (111:4 only intersect and not counect with it, there being no accommodation for the oat row gauge line. If, for instance, you have freight nor Albany to Rochester designed for Avon, Gene see, Mountmorris, or any southern point, there is an entire break of gauge and transhipment at Rochester, which. would have been entirely unnecceesary if all the roads of the State were narrow gauge roads, and entire uni rormity of i,auge had prevailed. In England the New York L entre] has been compared to the London and Northwestern Railway and the Erie to the Great estern, the effects of whose broad-gauge policy we have already seen. The effect of this has been to make our coal roads (for which the narrow gauge Is peculiarly fitted) connecting with it, such as the Blass turg and Delar. are, Lackawanna, and Western, ex pensive roads of six foot gauge, with a correspondingly expensive roillng stock and equipments, Under three distinct charters from the States of New York, Pennsylvania and Ohio, the main line of the Atlantic and U rest Western commences at a Junction with the Erie Railway at Salamanca, 414 miles from -N ew York, and runs in a southwesterly direction 385 miles to' Dayton, Ohio. I have not been furnished with the New York charter, and only • with the third seotion of the Ohio charter, and I have not the dates of either, and I do not know their provisions. The charter of the Atlan tic and Great Western Railroad Company of Pennsyl vania, is to be found in four Acts of Assembly, of 20th May. 1857(P. L. 801)•, Sand pril, 1858 1665 10th March, 1858 (P. L. 125)22d March, (P. .1.1 540); and the length of the road in this State is 88 miles. The main line (which is a single) at Dayton connects with a railroad to Cincinnati, a narrow gauge road, which has put down a broad gunge "straddle' track (rails on either side of narrow gauge rails) to accomo aate the Atlantic and Great Western traffic. It there Joins the Ohio and Mississippi Railroad, (broad gauge), terminating at St Louis. In the report of Mr. Forbes (who was sent to this country to inspect the road), to the London Board of Control of the Atlantic and Great Western Railway, on the 22d of November last, he says, "By means of the three associated companies, the New York and Erie, the Atlantic and Great Western, and the Ohio and Mississippi, a new and unbroken communication 1,200 miles in length, on the six foot gauge,has been opened between New York, Cincinnati and. St. Louis, and between the Atlantic seaboard and the Ohio and Mimi sippl rivers." • [Buffalo Exnsion ] Amongst the branches of the main limas a te ppears by the New York certificates Of consolidation there is a separate corporation called the Buffalo Extension of the Atlantic and Great West ern Railway Company, who are constructing a road iron' Randolph, near Salamanca, to Buffalo, of the six foot guage. [London Board of Control.] The Atlantic and Great Western being built by English capital and controlled in London, it was stated at the same meeting of bond and shareholders in November by the President of the London Board gf Control. "'We are met here to day for friendly ex planations. I felt it my duty when I took the position of Chairman of the London Board of Control to re quire certain things to be done. The first was that all money should be sent over to London, that we might know what we earned, that is forty per cent. of the receipts." It is not therefore singular that the princi pal information as to this road is to be gleaned from En Ilan Railway journals. The road Is spoken of as feeding the Erie with great •additional traffic to New York, and it Is said "under the circumstances it is not surprising to learn that the Erie Company, which will doubtless derive a great benefit from the Atlantic and Great Western, has engaged "to supply rolling stock to the amount of five millions of dollars for the pur pose of the through traffic between New York and Cincinnati," and this engagement "Is being faithfully and energetical y. fulfilled by that (Erie) Company and MB road is said to be "pro moted by a number of leading Engllahmen," a techni cal term in England designating the planners or origi nators of a Company. In addition to the report of Mr. Forbes to the Lon don Board of Control, there was also a detaileclreport on the 29th of May last by Mr. Moseley, an English Engineer, sent out to inspect the road. Anenthusiastic 'gentleman at the-November. meet ing, said "It was the Interest of every gentleman in that room to promote emigration to the tar West upon a very large scale, as their traffic would be increaed by addition to the population. The more English. people went over , there the better. The people, in the great West would understand how necessary , a free trade I OUR , WIELOLE COUNTRY. was to their advantage and development. Every Englishman was a missionary of Free Trade." [Ohio Act.] The Ohio Atlantic and Great Western Ccmpiany, at a meeting of their Stockholders on the 12th September, 1865, adopted the joint consolidation agreement, the same was done the same day by the ennsylvanis Company, and the two New York Com panies followed suit, on the 14th and lath of the same month. . . Certificates were produced from the Secretaries of State of the States of - Ohio and New York, of the filing of the agreement or a copy in their respective offices, but none from the Secretary of the Commonwealth of this State, but in lieu thereof a letter from him declin- Irg to file it, adding, "by the advice of the Attorney General, lifr.Aferedith," and I have therefore no evi dence of the ezkitence of the new corporation. The of cessity of the filing to create the new corporation, is distinctly recognized in the certificate or agreement of consolidation itself. 'I he act. of the State of Ohio is entitled "An Ac to authorize the consolidation of Railroad Com ponies of States adjoining In certain cases and to authorize Railroad Companies in this State to extend their roads Into adjoining States," and was passed 10th April, 1355 (53 vol. P. Laws, p. 143). This act authorized any railroad com pany in the State whose line of road extended to the boundary line of the State, or to arty point either in or out of this State, to consolidate its capital stock with the stock of any railroad in an adjoining State, the line or whose road has been made "to the same point and where the several roads so unite as to form a continuous line for the passage of ears: Provided that roads run ning to the bank of any river, Which Is not bridged, shall be held to be continuous under this nes." This get would authorize a consolidation with a Pennsyl vania road. but not with a New York road. Pennsylvania A ctj. Our act which was the subject of an unpleasant investigation which has cast a shade of apspiclon over it, was passed at the Instance of the Atlantic and Great Western and is a general law applicable to all companies em braced within its terms. There are words omitted in its firstsectit n which make nonsense of it; but sup posing It to mean the consolidation of thecapitai stock ora Pennsylvania Railroad Company with similar companies In other States "whenever the two or more railroads of the companies or corporations so to be consolidated shall or may form a continuous line of ra'lroad with each other or by means of any interven ing railroad—Provided, that railroads terminating on the banks of any river which are or may be con nected by ferry or otherwise shall be deemed con tinuous under this act." The interposition of "any in tervening railroad" was intended to include the Buf falo Extension. This act would authorize consolidation with the Ohio and New York companies, if the following proviso contemplating the passage of similar general laws by the btates taking aovantage of it was complied with : "And provided fortivr, That nothing In this art con tained, shall betaken to authorize the consolidation of any ctinpnny or corporation of this Commonwealth, with that of an, other State whose laws shall nut an thorize the like consolidation. I can have no doubt of the intention of the Legisla ture, who were dealing with our sister States upon terms of entire reciprocity. Our act was passed 241.11 .1I arch, ISM; (P. I aws. p 49.) New York act.] On the 29th April. 1865. the ',eggs lalure of New York passed, not a general law, but a private special act to authorize the consolidation of private A Beni ic and Great Western Railroad Company, in New York, and The Buffalo Extension of the At lantic and Great Western Railway Company with certain other Railroad companies. This act is expressly confined to the merger or the two New York companies, and although the words are general as to the companies in other etates with whom they may consolidate, yet the description of their forming a continuous line of railroad tits only the two roads of the same name in Pennsylvania and Ohio, which with the New York road form the main line orate Atlantic and Great Western Railway. By the New York act, Onr general law is degraded into a private act, for a cc mpany whose name was studiously kept out of view. This is a sort of Canadian reciprocity: all the benefits on one side. Bnt If this view be correct, still the Pennsylvania Charter of the Atlantic and Great Western Company remains. and we have It before as— f Catawissa Railroad. j The Little Schuylkill and Bus quehannab Railroad Company was incorporated by as act of alts March, 1561 (P. Laws, p. 159). In 1849 its mane was changed to the Celan-lass, Williamsport and Erie Railroad Comyany. By an act of 21st March, 1160 (P. laws. p. 134), and ajudiclal sale of the said railroad, the whole became vested In a new company called the Catawissa Railroad Company, which Company, by an act of 10th April- 9861, was permitted to mortgage its road for ‘250,0440 (P. Laws. 1862, p. 397). On the Slst October, 1660, the Sunbury and Erie Rail mad Company entered into an agreement with the Catawissa .RMlroad Company, whose road extended from Tamaqua to Milton. the object of which was that the Sunbury and Rrie should tarnish suilicient motive Power to bald over their own road between Milton sad Willlaintlyftrst all the passenger, express and baggage cats of the 4.sstawtsaa to and from Williamsport, upon certain testae and conditions therein mentioned, and thisagreement was to continue in force for twenty years. This agreement :passed to the Philadelphia and Erie and to the Pennsylvania Railroad Company. under their contract and lease. • In _this state ofaffairs, on theist, Nov. 1863,the Cata wine - Railroad Compaay of the first Dart made aeon tract and lease with e Western Central Railroad Company of Pennsylvania and the Atlantic and Great Western Railway Company of the States of Ohio. New York and Pennsylvania of the second part. by which the party of the first part. leased to the party of the second part their road and property for the term of 999 years. Connection act.) The legality therefore of this con• tract and lease depends upon the con.struation of the three Acts of Assembly referred to in the commence meat of this opinion. The first's -. An act in referents:, to running of locomotive engines and cars on cif tweet ing railroads," of the 13th March, 1047, (P. Laws. 3373 which enacts that in all cases where two railroads in this Commonwealth are or shall be connected, it shall be lawful for the Company owning either of the said railroads (with the consent of the Company owning the other of the said railroads, to run its care and toco motive engines upon said other railroad, and to erect ater stations and other buildings for the due accom modation of the cars and engines employed thereon. Provided, that nothing herein contained shall be eon strued or interpreted to release or exonerate any Company owning a railroad from the obligati m and duty which maybe - im)scred by existing laws of trans g. subject to the rules and regulations of said companies, by locomotive steam engines, the cars' whether loaded or empty, of all persons and companies who may require such transportation, over and along so much and such parts of their railroad as locomo tive steam engines shall be run upon, whetner they be run by the Company owning the road, or by any other Company." The act clearly contemplated mechanical oennection, for the roads then were all tour feet eight and a half Inch narrow gauge roads which fitted into each other. so as to form practically but one road. 'I bat this was the true meaning is shown by the eighth se - tion of a supfdement to the act incorporating the Sunbury and brie, passed 27th March, 1852, (P. Laws. lie) [Act 2311 March, 18521 which provides "That the Paid Company may run their cars and locomotives over the said road and Its bra. ches, and over any other railroad which at any time may connect, either di rectly or by means of other railroads therewith. in such manner as may form complete railroad connec tions between the cities of Philadelphia and Erie" clearly intending an actual mechanical connection, and not a mere business connection. Act 29th March, 1559.] The act of 29th March, 1559. (P. L, 290) is a supplement to en act in reference to running of locomotives and cars on connecting rail roads, approved 13th March, 1847, and' it enacts that that net shall be so construed as to authorize com ponies owning any connecting railroads in the State of Pennsylvania to enter into any leases and contracts with each other in respect to the use, man s gement and working of their several railroads. Pro vided that the Company so contracting for or leasing any such railroad may have the right to fix the tolls thereon, but not at a higher rate than is authorlx*d by the charter of either of the said railroad Companies.' This also undoubtedly means mechanical connection. for it merely enlarges the powers of the roads included within the terms of the original act. But there might be an intervening road connected mechanically with both roads, and the roads at either end could not con tract with each other because not connecting directly, and this occasioned the last act of'23d April, 1561, [act of S6d Apr 11,1861,1 entitled "an act relating to certain corporations," (P. Laws, p. 410), to provide for this case and to extend the powers of such connecting roads. It enacts "that it obeli and may be lawful for any Railroad Company created by and existing under the the laws of this Commonwealth from time to time to purchase and hold the stock and bonds, or either, of any Railroad • Company or Companies,. chartered by, or of which the road or roads is or are authorized to extend into Oda Commonwealth--and It shall be lawful for any railroad companies to enter into contracts for the use or lease of any other railroads, upon such terms as may be agreed a pon with the compa ny or companies owning the same, and to run, use and operate such roads in accordance with such contract or lease: provided that the rearm of the companies so con tracting or leasing shall be directly or by means of in tervening railroads. connected with each other, The word " connected" has in this law the same meaning as in the two preceding laws- If yondeave out the interposed words, and read it "directly con nected with each other," this Is beyond doubt. and the interposed words must receive the same construction. The effect is, that If there la an intervening railroad, it :and the other roads at either end must all be mechani cally connected, which can only be when the gauge of all the roads is the same, so that the same cars and !locomotives may be run over all of them without change, obstruction or delay. In consideringithe evils of a break of gauge, we not only have the positive evidence of our senses, bat the ' opinion of a very able gentlemen, a former President of one ofihe defendants. "The immense and decided - superiority" Bald he "of the Sunbury and Erie route over the others in consequence of its freedom from the necessity of frequent transhipments, will not be suffi ciently appreciated by those not familiar with railroad traffic and a change of one ton of merchandise from one carte another is about equal to the cost of trans porting it fifty miles," what would be its practical effects upon a ton of coal '? [Act of Congress,hisetch,lBB3.] The act of Congress of the 3d March, 1863, to establlah the gauge of the Pacific Railroad and its branches,has enacted, 'That the gauge of the Paclec.Rallroad and its branches throughout their whole extent, from the Pacific coast to the Missourit shall be and herehyls established at four feet eight and one-hale Inches,'a most .wise .and prudent measure, which should be followed by the States. and the Gene ral Government In sanctioning any future railroads and the exceptional gauge of four abet ten inches,shottld be reduced to the standard gauge of the country. The 'advantage of a uniform gauge ; as of the Pacific Railroad, over the wheleol the United States, would be incalculable both in peace and war, as the same locomo tives and cars could be (mid on everyroad In the Union. Etl - cannot tmderstar.d bow a crossing fet gauge road run ning through our State and a narrow gauge road with which It mechanically cannot conneet can be called a connecting road.' I am therefore of opinion that the Atlantic and Great Western Railroad Com pany. and the Catawissa Railroad COmpany are not " directly, or by means of intervening railroads colt nected with each other," and, of course, that their agreement, of the Ist November, MS. is entirely null and void. But supposing this to be the case, it ie said that the complainants are not entitled to take advantage of its invalidity, because they have no such interest as en ables them to apply to a Court of Equity for the exer cise of its equitable powers. [Andrew Scott's BILL] In Andrew Scott's Rill against the defendants. It was sworn, on their part, that he was not a stockholder in the consolidated company, but he exhibited a certificate of stock shewing hewas a holder of twelve shares in the Atlantic and Great Western Railroad Company, the Pennsylvania corporation and the only one I can recognise. It was then the ordinary • case of a shareholder in a company, asking the inter position of a Court of Equity, to restrain the commis sion of acts which were ultra wires. I thought this was settied in the case of Sanford vs. Railroad Company. 12 Barris, 878, where the plaintiff was the holder of only ten shares, and was the member of a rival ex press company, sad bad purchased the stack for the purpose of tiling the bill. It was held there that the contract made by Lbe railroad company was against law and void,and it was ortic red to be canceled anc delivered up. In the case of Gratz vs. Pennsyl vania Railroad and Philadelphia and Erie Railroad Companies. ( 5 Wright, 442) the suit was by a sine shareholder brought to restrain acts alleged tote ultra rires. [English cases cited by defendants.] —As seve mi cases in England have been cited by the defendants, and the question has been argued at length, I shall consider them briefly to see whether we have been in error in Pennsylvania. In Sparks vs. Southwestern Railway Company, 1 Small & Gitferd, 142. Vice Chancellor Stuart on the 14th January. 1853, held that the plaintiffs having been aware •of the in te ni ion to construct the line. and not having applied u At, diligence, thecourt would not grant the injunc tion; and at page I€ 6 he says,' no doubt it has been held in several cases that the mere fact that the plaintiffs are shareholders in a rival company is no reason for the court in a proper case refusing its aid to prevent the violation of contracts. But where:the fact I established the L under the pretence of serving the interests of one Compary, the shareholders in a rival company by purchasing shares for the purposes of litigation can make this Court the instrument of de feating or Injuring the Company into which they so intrude themselves in order to raise questions and dis putes on matters as to which the other members of the company may be agreed. I cannot consider that in such a case it is the province of the Court ordinarily to interfere." 'I his is not the case before us, taking the language in its strongest sense. ID Begets vs. Oxford, &c., Railway Company, 2 De x and Jones en, the MA was filed by a clerk of a rival company, who bad made him a shareholder with a view solely to their own interests, and the case was heard and decided on the merits against him, the act complained of not being ultra Tires. Lord Justice knight Bruce said: '• But if on the legal point there is room for doubt the circumstances do not in my judg ment render it imperative on the Court to act against the Company. In Forrest vs. Manchester, Sheffield and Licoinshire Railway Compan v e le Bevan 40 (20tn May, lest). where the Plaintiff who held iff2 of stock of the Railway Company had an interest amounting to 1.160 in a Packet Company, whose profits were interfered with by the excursion traffic of the Defendant. Hewes also a Director of the Packet Company, and the directors di, rcad The institution of the suit, and indemnified him against the costs The Mas'er of the Rolls decided tII3 case on the merits against the plaintiff. Upon appeal lord abartcellor Woodbury on the lath July, 1061, af firmed the decree of the Master of the Rolls (2 Jurist, 21. S., Se% not upon the ground taken below, but en tirely upon that of personal exception to the character of the plaintiff as being the mere puppet of the Packet Company, who bad directed the institution of the suit. In Hare vs. London and Northwestern Hallway Company (2 Johnson & Hemmirg. 80) Vice Chancellor Wood. on the 11 June. BR, held the agreement com plained of was not ultra area, and it wits company had the plaintiff as a shareholder in one company had with full knowledge received profits under an agreement between that company and others, can afterwards on purchasing shares in one of the other companies parties to the agreement, sustain a bill on behalf of all shareholders in such company impeach ing the agreement as tiara riru; more especially if it appears that he is really suing in collusion with one of the companies parties to the agreement. I have stated these cases in detail to show, that the case before the Court Sias no features in common with any of them. Other Cases.j In the leading case of Colman vs. TlieHastern Counties Railway Company, to Bees - an Lord Langdale on the 17 November, 1846, where a plaintiff ftleela bill on behalf of himself and other shareholders in a railway company to restrain.the Directors committing a breach of trust and it appeared that he was suing at the Institution of another riva company. Held that this circumstance was not of its self sallicient to prevent him from obtaining especial injunction en the merits of the case. In Morahan vs. Easters Union Railway Company (6 Beltway and Canal cases, 1521 Vice Chancellor Wig ram and Lord Cottenharn held that the holder of two scrip certificates might maintain a Dill against the Company. In Simpson vs, Westminster Palace Company and Sir C. Wood (8 House of Lords cases, 2L 2 ) the Bill was by one Inc iyiduel. the holder of fifty shares; and in Gov. Attorney General vs. The Great Northern Rail v Company (9 Law Times Reports. 633) Vice Chan cellor Hindersley said p. 656, "a single shareholder, e , en 11 599, out of 600 shareholders agreed to car, y on a different business in addition to the Railway business and it wise]. arly for the benefit of the Company, and If it was clear that they had made enormous profile from drone' it, and were continuing to derive those profits, a single snareholder has a right to say "that is not oar contract among ourselves, ,von shall not do tt.'' and he may come and get an lehinction. I may here observe with reference to some of the observa tions made by Mr. Stevens that it is perfectly Immo.- terial'what is the motiveof the Party in coming " "In the case of the Eastern mantles. at the Rolls, where the Company were engaged in establishing pach sts. to trade frog Harwich to the Continent, 1 think a single individual or one or two individuals came and it wee 'proved to demonstration that they were persons who had actually bought their shares in the Railway Company for the purpose of preventing this, because they belonged to some rival steam pack et company. But the motive has nothing t do with the matter; it is against law. It is against the con tract between the shareholders, and it is against the contract which Is made between the public and the company. when the com pany is incorporated for the purpose of carrying on their business as railway camera. It is therefore illegal, and in effect though not in terms prohibited by the Law to a Railway Company." The whole of this opinion is most instructive as to the absolute \ necessity for the public good, that these powerful railway corporations should be kept strictly within the limits of their charters. Everything oeyond these lis its is prohibited, the very doctrine estab lished by our own court. In Hattersley vs. The Fart of Shelburne (31 Law S ch. 873), which was a snit by a single shareholder, a railroad company had entered Into an agreement to lease their line to another company, and the agree ni est contained provisions which were legal and others which were ultra ewer, but an _application was to be made to Parliament for power to carry out such provisions as should be ultra tires. It WAS held in that case by the same learned Judge (30 July, 1862) that as the agreement provided for a number of things to be done, which were all for the purpose of accomplishing& certain object that was ultra vices, the parties had no right by virtue of that agreements until they bad:obtain ed the authority of parliament, to do even those acts which, Independently of the agreement, they dld not require the authority of parliament to do. " But I ap prehend," said the 'Vice Chancellor, p. 878, " it is per fectly clear that if there was in this agreement no pro vision for an application to parliament, so flu as the assistance of parliament is required,such an agreement a , this would be entirely ultra titres, and Illegal, and leth nk that according to the principle of Reman vs. Bufford, followed as:it has been in other cases, this court will not allow any of the acts which are agreed to be done by that Illegal agreement, merely because independently of the agreement some of those acts might be done. I think that principle is established, and it is a principle which commends it elf to one's sense of right and justice, that although a Company may do a certain act independently—that Company is not to agree to do that act, as part of a series and collection of acts to be done foh thepurpose of working out au illegal agreement. It was objected to the plaintiffthatbewas not a bona fide plaintiff. but intended simply to subserve another company, but although the vice Chancellor said he could conceive Mr. Battersley may desire to favor the interests of another companyeyet he considered him ere itled to maintain the suit. He was in fact a dis carded contractor who had quareled with the Company he sought to enjoin. In Mansell vs. The Midland Great Western (Ireland) Railway Company (32 Law S. Ch. 513.), Vice Chancel lor Wood (8d June, 1863,) on a bill filed by sharehold ers, granted them relief against the acts of their di , rectors which were ultra vines; and in White vs. Caer marthen and Cardigan Railway Company (33 Law Si Ch. 93.), the same judge held (November 16, 1964.) that a shareholder suing a company and the directors for a breach of trust, must sue on behalf of himself and the other shareholders. The reason assigned by him is that "It would be a most improper arrangement to allow a bill to be filed by one person with an intent that 300 or 410 shall be suramoneain chambers by no tice of the decree being given, when the forms of the court plainly allows bill to be Bled by him on behalf of himself and all other shareholders. If the plaintiff is right in saying that it is Wire viral it does not &Ig nite whether all the other persons wish it done or not, because where it can be assumed to be for tie benefit' of everybody, the party may sue on behalf of himself and all other?, except the persons he charges with misconduct.' [Result of authorities.]—The result of this examina tion of the authorities clearly shows that Andrew Scott lute a clear right to institute this suit in order 'that the company In which he is a stockholder_ may_ be restrained from acts which are illeg'al and tdtra vireo. The next question jai, have the Philadelphia' and Erie Railroad Compaby, and of course their lessees The Pennsylvania Railroad Company, such an interest In the subject matter of. the controvergy as entitles :them to. he Interposition of a Court , of Equity in re lation to the contract of the Ist November; 1865, and the parties to it, the defendants tin these proceed._ lugs o , r4e Cliteigthat4 iO l O 'faCOnaecting reed. Wttb. , , . F. L. FETHERSTON. Ptil)U&. DOUBLE SHEET, THREE CENTS. the Philadelphia and Erie and endeo the acts of 13tii March, 1847, and 29th March, -1.819:, ) , they are intimately connected 1 7 their t contract of list October, 1860, for a period o twenty' , " years. This contract embraces the running of the lo• comotives and cars of the Catawissa upon •the other road, and the use, management and working of these several roads,and was necessary for the successful management by the Catawissa of their through line be-- tween Williamsport and Philadelphia. The contract of theist November last transferred all the right pro perty and franchises of the Catawissa to the Western Central and the Atlantic mid Great Western, and left nothing to the Catawissa but the shell of a corporation. This con, tract Is founded upon the hypothesis that the Cats wtssa and the Atlantic and Great Western are con.' nected with each other by means of the Philadelphia • and Erie as an intervening railroad, a question Ia which that Company have a very deep interest. As it is clear that the contract of theist November last, is illegal and void, and ultra sires of all the parties to ft, can it be said that the intervening road which has se important a contract with the Catawissa i has not a.. direct and positive interest in preventing Illegal acts by illegal assignees in relation to this contract and the • working of its road, which can Only be effected by the f restraining power of a Conrt of Equity? I cannot doubt • , that this is such an interest as a Court of Equity will ' protect, particularly where the Intervening road'ls not • to be used according to the intention of the Legisla ture, but a new and hostile road is to be constructed to - connect with t 1 e leased road. The Atlantioana Great Western has no authority to contract tc build the rat roan specified in the contract, nor has the Western Central, for by the Reading con tract It was thought necessary to , add another com pany to complete the route, and it is perfectly certain that the Catawhsa had no authority to enter into such a contract which on all banks was ultra vires. Where acts have been done by corporations so en tirely illegal and in such utter violation of the well established policy of the hate. I think it is the duty of this Court to exert the power entrusted to it. at the suit of any one having Such an interest, however small, as entitles him to equitable relief. It is the interest of the public that these unauthorized stretches or power or great corporate bodies who aresometimes controlled by a board three thousand miles distant, should be re strained by the arm of the law. The true object of the Atlantic and Great Western, viz.: ..a great through route to New York city," is openly avowed in the Catawissa contract. If it had been a scheme for Philadelphia it would have con nected at Lewisburg with the Philadelphia and Erie, and by it have reached the metropolis of the State. The contract with the Phiiadelphiaand Reading falls with the contract with the Catawissa, and this has two singular features in it. one the contract to build roads and bridges, for which they have no anthorty by law, and the other to make subscriptions for objects not contemplated by the Pennsylvania charters of either of the two contracting railroads. The real °Went in this agreement is the same as in the Catawissa. But the whole contract is Ultra circa, I see nothing in the various points and objections of the learned counsel of the defendants Walter the views I have already expressed. Ido not regard it as en forcing a forfeiture, it is simply declaring an act con trary to law and restraining it at d thus saving the parties from any forfeiture. As I do not intend to touch the contract of 31 October, IS6O, nor to express any opinion upon the points presented by the plain tiffs in their second prayer for relief, Ido not seehow the provision permitting a reference as to disputes. under the contract can interfere with the present Fero needing. On the lath February inst the Chief Justice delivered an opinion in the Lehigh Valley Railroad Company. vs. The Lehigh Coal and Navigation Company, in which he says: "The bill and affidavits pi ofess..the corporate purpose to reach :he Wyoming Coal Field, and their charter requires them to connect with the. '• Lehigh and Susquehanna Railroad, and by a connec tion I understand such a union of the two roads 44, some point as to enable cars to pass frond, one road to the other for business purposes. • Such a connection must be made with the Lehigh and fonsquelianna Road and must be formed by the plaintiffs before they finish their work, but I make no account of the fact that they have not yet selected the point of connection, nor disclosed it in the Bin and affidavits:" (In the :wont "cars" the Chief Justice includes locomotives.) 'This strengthens Ire as to .the correctness of my opinion, for both of us have arrived at the same conclusion without consultation with each other. In the Passen ger Railway Acts the word connection is used in its mechanical sense. Mr. Smith. the President of the Reading Road, says, in his affidavit, " car trucks constructed for a track of tour feet eight and a half inches gauge. can run upon a. track of four feet ten inch gauge, provided the wheels are made with a broad tread. But it is impossible for cars specially constructed fbr a track of four feet ten inch gauge to run upon a track of four feet eight and a • half inch gauge." In none of the affidavits is it alleged _- that the locomotive of one road can ran on the other, of either of these gauges. This clearly establishes the entire and complete uniformity contemplated by our **, • acts of assembly, for the locomotives and cars are to, run over the connecting roads. . . When General Grant took Petersburgand pushed on after General Lee, he ordered his supplies to follow him by rail. The road from _his to Petersburg' was the regular narrow gauge of 56.34 inches, but it was found the road from Petersburg to Burkesville was a five foot goage, and the construction corp., at once altered it to the regular narrow gauge, but this caused a temporary but serious stoppage of the supplies. (See appendix B). Cpon looking back to 1833 I find the exceptional gauge of 5 feet 6 inches (the Canadian gauge) advo cated on the same grounds t hat Mr. Branel selected • the Broad gauge for tne Great Western, by the friends - of the Portland and Montreal road. -.ln addition to all this there are some hundreds of miles of connecting roads on the same gauge in Canada, that are for all practicalpurposes just as - valuable to our road as if they were embramd in the same Company. Looking beyond the western limits of Canada the same line is to extend to Lake Michigan at Grand Haven, 1,009 miles from Portland West, while at the east a branch will extend to Quebec and 7 rois Pistoles, the gauge of our road receiving it from, being tapped on the south. so that passengers and freight seeking the Atlantic seaboard or Europe. naturally continue on the line from Its westerie; terminus to Portland." system of railroads occupying an independent position bythe differenceof gauge from all the narrow gauge railways south of it" Uniformity ofgauge proposes the same advantages as the interchangeable Springfield musket, each part ot which will fit any musket manufactured for yeara„.. 6 back—with one uniform gauge the same locomotive . and car could be run upon every road in our country. I have had the assistance of very able arguments on both sides which have covered a great deal of f,iround, and must form an apology for the length of this opin ion: all the counsel were of the Pennsylvania bar, two. had been Judges of this Court, and one of these, with another eminent gentleman had occupied trign,eiecrt tive positions at Washington, whilst the others me be rs of our Philadelphia bar,are distinguished to Elanle learning and ability. This has necessarily increases= • t the responsibility of the Court in considering and weighing the various arguments addressed to me 11D011,, the law, and also as to the dlseretlonito be exercised by ' a Court of Equity in granting a preliminary injunction. I am of opinion with the plaintiffs (the railroad companies and Andrew Scott) that? -`- their first prayer for relief is well founded * and that the contract of the Ist November, 1865, is invalid and void. I express no , opinion on the second prayer of the plaintiffs. • but grant the fourth prayer and such part of the third prayer as is consistent with the'Zl fourth prayer, and is necessary to carry it; into effect. The second prayer in Andrew • • Scott's bill is also granted. Let decrees be drawn in conformity to the above. APPENDIX (A.) [Herapath's Railway Journal, Sept. 9. 1856, p.971.] d t the sixtieth half yearly meeting of The Great..- Western Oompany on the 7th of September last, the Chairman said: "It is with great regret that we are _ not 'able to propose to you to-day a higher rate of di vidend than two per cent per annum. .• * * About the time of the cessation of the civil war in Ame,rtca, there was a considerable falling off in one or two large branches of the traffic which came upon your line. The mineral trade from South Wales, especially in steam coal, was largely diminished by the sudden ces- 4 ration of the demand for blockaderunners." The coat of maintaining the permanent way was Increased by the substitution of the improved cross sleepers and fish Jointed rails for the old Barlow rails. " The expenses of the maintenance of the per-. t ' naanent way and works of the Great Western Railway are heavy from these causes : In the first place, it L~ more expensive to maintain a mixed gauge, of which • we have 220 miles. than either a broad and narrow '‘• gauge separately." And he adds "As to:the,", iron traffic, they had been excluding from their mile not only the coal trade of'' North Wales by preferential rates, but also the South. Wales coal by reason of the break ofguage." • [Herapath's Railway Journal, MaY, ' 6 5, Page 38 4) "A gentlemanwho takes a very active part et rail "A affairs said some time ago, at one of the railway me:st ings, that the 'gauge' was the Great Western's master evil. It is, however, an evil that will be, mastered. T , e great evil of it, or rather of the adoption of two different gauges in the country, was the expeisaive battle of the gauges which was. fought some years ago:, and the interruption of traffic a break of gauge natu rally causes. If it is de treble to chance the ' broad into the narrow;guage all over the Great Western system it can be done gradually at no.cost or waste, or very little—a broad can be easily turned into a.narrowle guage by the addition of a single rail ins de, demillAs.. the mixed guage broad and narrow. But a mix gu yar ag ely e la n ra arr th o e w r m gn o ag rezx traffic, and for railway extension. dm narrow Ls e. cidedly preferable to the. broad gauges,ln our " opinson is a pity the broad linage . was ever ' ile F ilat or ve ndn inap erab ain an ten d a . n l e b t ur har t l a a. introduced into South Wale.. we think the th • narrow should be as jaPidlY aub stau n .,... ted. o d ene ft, broad there. 88 can be -. convenki * * * “Tha Graaf. Western la now ,1 8 :a_ttatt__,, _a_ marrow as a broad gunge railw a y —u P on t* tr i r Istt January It had more goods engines than on the broad in a g e . but /wi t 72 • f the broad Of goods broad and Sta narrow , ga and pam e p n ass ger en engi" ger en es gin% the u ed ge rat ex l gin suMe m b u nt dr e r e r glues are we befirre heleg, Constructed', On th emg rovi i m The ,number rava o/ catriatea_ 8,14.
Significant historical Pennsylvania newspapers