2. The subject is embarrassed in this country by the division of the sovereignty into state and national, such companies deriving all their corporate powers from the state. And the transportation of the mails, as well as troops and the munitions of war in time of peace, being exclusively a national interest, it has been sometimes supposed that the national government was altogether at the mercy of the railways in regard to this species of transportation, except that they might claim to pass upon the same terms as other passengers and freight. The matter of the transportation of troops in time of peace is one of small importance, and where no serious abuse is likely to intervene. And in time of war all the resources of the nation are, of course, subject to the control of the national government.

3. But the transportation of the mails is one of constant expenditure, and of vast importance in the aggregate. But as the matter has not been discussed in the judicial tribunals, either of the states or nation, we cannot pretend to shed much light upon it. It would seem wonderful if the legislatures of the states and of the union have not the power to control the subject to the same extent as the British Parliament by general legislation. And accordingly it will be found, that many of the states in their general railway acts have introduced provisions requiring the railways to transport the mails upon reasonable terms, and providing for an umpirage where the parties do not agree.

4. In England it has been held, that the officers of the postoffice who are required to be in charge of the mail during its transportation, may have an action against the railway company * transporting the same, for any injury sustained through their negligence, although there subsist no contract between the parties, and none in any form, except for the transportation of the mails, with the proper incidents connected therewith, and the injury was received while in the performance of their official duty, in charge of the mails.1

a railway company at the rates specified in 7 and 8 Victoria, ch. 85, § 12. Attorney-General v. Great Southern & Western Railw., 14 Ir. Com. Law Rep.

447.

1 Collett v. London & North W. Railway, 6 Eng. L. & Eq. 305. Lord Campbell, Ch. J. here says: “The duty does not arise from any contract with the plaintiff, but from the obligation imposed by the legislature upon the com

5. Almost precisely the same point was decided in a late case 2 in New York, in regard to the United States mail agent, who was injured while on board the company's cars in the discharge of his official duties, in charge of the United States mail, there being no contract for carrying plaintiff except with the government, and in connection with carrying the mail. The decision of the court is expressed in the language of Lord Campbell, Ch. J., in the case of Collett v. London & N. W. Railway.3

pany to carry the mail-bags and the officers of the post-office in charge of the letters. If it be the duty of the company to carry the plaintiff at all, it must be their duty, in doing so, to use reasonable care and skill."

That the establishment and maintenance of public posts is an exclusive prerogative of sovereignty, is a proposition admitting of no question. The history of the establishment of public posts, for the conveying public intelligence, and for other purposes connected with governmental administration, is curious.

They are mentioned as having been established, in the Persian empire, as early as the time of Cyrus, (Xen. Cyrop. lib. 8;) and in Rome, in the time of Augustus, (Suet. in Vit. Aug. c. 49.) Plutarch, in his life of Galba, mentions, that the magistrates were obliged to furnish horses for this service, upon proper requisition. And the younger Pliny, in writing the emperor Trajan, apologizes for having resorted to the use of the public post-chaises, under his charge, for private purposes, in a case of painful emergence, the death of a near family relative; and where he desired to have his wife pay her condolence to the surviving members of the bereaved family, in the freshness of their grief. The emperor's reply is a model of state papers, brief and pertinent. Book X., Letter 122. Louis XI., it is said, first established them in France, in 1474; and it was not till the 12th of Charles II. that the post-office was established in England, by act of parliament.

The history of the subject shows, that it has always been regarded as one of the rights pertaining to sovereignty, and that the citizen, or subject, felt bound to lend all requisite aid in its accomplishment. That the sovereign should be at the mercy of the citizen, in this respect, involves the same inconsistency, as that it should be so in regard to the other rights of eminent domain.

• Nolton v. Western Railway, 10 How. Pr. R. 97.

' 6 Eng. L. & Eq. 305.

CHAPTER XXXVIII. .

THE CONSOLIDATION OR AMALGAMATION OF COMPANIES.

SECTION I.

The Power of the Legislature to combine Companies.

1. The power of the legislature unquestioned 3. Beyond the power of railway companies in England.

2. Consent of the shareholders necessary in this country. But acquiescence probably sufficient.

in England to combine without legislative permission.

§252. 1. THERE seems to be no question made in England of the power of different railway companies, or railway and canal companies, to amalgamate or combine their interests and their stock by agreement, with the consent of Parliament, under a special act. This is every-day practice there, and seems to be a very useful and just mode of arranging the business of different lines, or the same continuous line often, where competition is liable to do harm, both to the traffic and the shareholders. Some few questions, of no great importance, have already been decided upon this subject. In a case where two canals were combined with the grant of a railway, and the railway company were, by the special act, to pay the canal companies a specified price per share for all their shares, "from and immediately after the opening of the railway from A. to G. for public use"; the railway being so opened, the whole length of the Grantham Canal, but

1 Under a clause in the deed of settlement of a company, giving power to the directors to act in their discretion as they should think for the interests of the company, quære whether they could purchase the business and take the assets and liabilities of another company; but where the shareholders had acquiesced in the amalgamation, and the dealings had been such that it was impossible to replace the companies in their original position, it was held at any rate too late to disturb the arrangement which had been made. Saxton Life Society in re, 32 L. J. Ch. 206. And see S. C., ex parte Era Life and Fire Ins. Co., 1 DeG. J. & Sm. 29.

not the whole line, as specified in the act, the remaining portion being that which competed with the Nottingham Canal; the Grantham Canal brought an action for the price of their shares. It was decided, in the court below, that no recovery could be had until the whole railway was opened for public use, according to the terms of the act.2 But in the same case in the Exchequer Chamber, it was decided by a divided court, that the railway being opened, so far as competed with the * G. canal, it was the fair import of the act, although containing no distributive words, that each canal company might recover its several interest, whenever the railway was fully opened, as to competition with their interests.4

2. But in this country it seems to be regarded as indispensable, under the restriction in the United States constitution, that the consent of all the shareholders, to the amalgamation of dif ferent companies, should be obtained. But, except in the case

* Grantham Canal Co. v. Ambergate, Nottingham & Boston & Eastern J. R., 6 Eng. L. & Eq. 328.

12 Eng. L. & Eq. 439.

This seems to be a very just and reasonable decision, but not altogether consistent with the terms of the act. But it is a striking illustration of the strong inclination of the English courts, both of law and equity, ordinarily, to escape from merely verbal and technical obstructions to the attainment of the full justice of the case.

-Fisher v. Evansville & Crawfordville Railway, 7 Porter (Ind.), 407. See also Kean v. Johnson, 1 Stockton, Ch. 405 – 424, for an elaborate opinion upon this subject, where the special master, sitting for the Chancellor, arrives at the conclusion, that the legislature have no power to consolidate different railway companies without the consent of all the shareholders, and, as the statute provides, that nothing therein contained should affect "any right whatever," it should receive the construction, that the consolidation provided for should be effected, in the only practicable mode known to the law, which would not affect rights, i. e. by the consent of all the shareholders. Chapman v. M. R. & L. E. R. & S. & Ind. Railway, 6 Ohio St. 119. The act of amalgamation is not void, but voidable at the election of shareholders. McCray v. The Junction Railw., 9 Ind. R. 358. Stock subscriptions are thereby released. Ib. In State v. Bailey, 16 Indiana R. 46, it was held that corporations can only consolidate with the consent of the legislature, and when a consolidation is thus effected, it amounts to a surrender of the old charter, and the formation of a new corporation out of such portions of the old as enter into the new. And see McMahan v. Morrison, 16 Indiana R. 172. Where two railroad companies, in an agreement for consolidation, inserted an article to provide for the completion and running

VOL. II.

42

*622

of unpaid subscriptions and analogous matters, the shortest acquiescence of the stockholders, in the combination of different companies by act of the legislature, will be likely to be held by the courts as conclusive of their right to interfere."

3. But it seems to be regarded in England as beyond the powers of railway companies to combine their interests and equalize their dividends without an enabling act of the legislature. And it was held, that a single shareholder was entitled to apply to a court of equity to restrain such an attempt. And it is competent for one shareholder to maintain a bill for an injunction restraining the company from doing an act beyond the range of the statutory powers conferred upon them. But a private individual is not entitled to move an injunction against a public company for exceeding their powers, unless he suffers an actual injury in consequence.8

of the route of one of the two companies, and the directors of the consolidated company failed to comply with the provisions of this article, it was held, that if the duty thus created was owing to all the stockholders, one of the stockholders could not sustain an action against the directors, to enforce a compliance therewith; and if the duty was owing to a class of stockholders, having in the matter a right or interest distinct from the rest of the stockholders, any proceeding to obtain relief for a refusal or neglect of the directors to discharge that duty, must bring before the court not only the directors of the company, but the two classes of the stockholders. Port Clinton Railw. v. Cleveland & Toledo Railw., 13 Ohio St. 544. Where two companies were amalgamated by agreement, the first company covenanting to indemnify and hold harmless the stockholders of the second company, only those members of the second company who have executed the agreement can claim specific performance of the contract of indemnity. Anglo-Australian Insurance Co. v. British Provident Insurance Co., 8 Jur. N. S. 628.

6

Chapman & Harkness v. Mad River & Lake Erie Railway, and Sandusky City & Indiana Railway, 6 Ohio St. 119. Two companies cannot consolidate their funds, or form a partnership, unless authorized by express grant of the legislature, or necessary implication. N. Y. & Sharon Canal Co. and Sharon Canal Co. v. Fulton Bank, 7 Wendell, 412. The majority of a corporation cannot bind the minority, by the acceptance of a fundamental alteration of their charter. Ante, § 56. See Macon & Western Railway v. Parker, 9 Ga. R. 377. 'Charlton v. Newcastle & Carlisle Railw. Co., 5 Jur. N. S. 1096. Ware v. Regents Canal Co., 5 Jur. N. S. 25.