Daily evening bulletin. (Philadelphia, Pa.) 1856-1870, February 26, 1866, Image 1

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withdrawn.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.