more than a hundred miles below Canton, and along that portion of the road which had been completed years before the passage of this act. But conceding that the act authorized the purchase of land all along the line, both of the completed and of the uncompleted portion, from the Louisiana State line to the town of Aberdeen, then it is safe to say that it would justify the acquisition of a million acres of land. For what purpose was this enormous amount of land to be obtained and used? Either "for all necessary purposes of said railroad," or "to be disposed of at pleasure for the purpose of constructing and maintaining said railroad." If it was to be bought and used "for necessary purposes," then it was to become appurtenant to the road; but we have seen that the property here involved was not so bought or used, but on the contrary, it was, when bought, and it thereafter remained dedicated to purposes utterly foreign to the business of a common carrier.

If, on the contrary, we are to understand, that by the words "to be disposed of at pleasure for the purpose of constructing and maintaining said railroad," the company was empowered to buy this immense quantity of land scattered along a line of three hundred miles, situated in many counties, and with no restrictions except that it should be in five hundred acre tracts, and in the vicinity of the road, it follows that the company was vested with power to enter the market generally as a purchaser, holder and speculator in real estate. It might become the holder of plantations and factories, and of entire towns and villages, and buy and sell and lease lands applied to every use known among men; nor would it be bound to dedicate them, after they were acquired, to any purpose whatever connected with its business as a common carrier. It would differ, therefore, as to such lands, in no respect from a private person, so far as its right either of acquisition or disposition was concerned; and hence there must be applied to its conveyances the same rules of construction as if they were made by private owners. It follows that as the mortgage of the afteracquired property would have been void as to third persons, if made by a private person, it is equally so as to the lands here involved, though made by a railroad company. The case of Calhoun v. Paducah R. R., 9 Cent. L. J., 66, is quite in point; and the opinion of Hammond, J., of the United States District Court for the Western District of Tennessee, compensates by its learning and ability for any lack of authoritative character in the tribunal.

There is no merit in the objection that even though the mortgage was not operative on the land, plaintiff obtained no title to it under the sheriff's sale, because at the time it occurred the property was in the hands of a receiver, appointed in the proceedings for foreclosing the mortgage. The receiver was not ordered to take possession of this land specifically, but was only directed to take charge generally of the property embraced in the mortgage;

2 A. & E. R. Cas.-27

and nowhere in the proceedings was this land specifically alluded to, until the filing of the receiver's inventory, more than a year after the sale by the sheriff under execution and the purchase of the property by the plaintiffs. The receiver never took visible possession of the property, except by receiving rents from the tenants previously in possession; nor was anything done to admonish the public that this property was claimed as being embraced in the mortgage.

Under these circumstances, as the property was not embraced in the mortgage, the purchaser at the execution sale got a good title. Judgment reversed, and judgment here on the agreed state of facts for plaintiffs.

THE NEW HAVEN & NORTHAMPTON COMPANY

v.

WILLIAM HAMERSLEY.*

(United States Supreme Court, October Term.)

The charter of a Connecticut railroad contains a clause reserving to the General Assembly the right to amend, alter, or repeal it. The Connecticut statute law allows railroads to discontinue a station if the approval of the railroad commissioners is obtained. The above-mentioned railroad, acting under these laws, discontinued two of its stations, the commissioners approving it on certain conditions, which were complied with. Subsequently the General Assembly, by an act purporting to amend the charter, re-establishes one of the stations. Held, That the assent of the commissioners did not constitute a contract on the part of the State with the railroad, and the act of Assembly last named was valid.

Error to the Supreme Court of Errors of the State of Connecticut.

R. D. Hubbard and C. E. Perkins, for plaintiff in error.

William Hamersley and John R. Buck, for defendant in error. WAITE, C. J.-The New Haven & Northampton Company is a Connecticut corporation, authorized to construct and operate a railroad from New Haven, through the town of Southington, to the Massachusetts State line. It has full power to erect and maintain toll-houses and other buildings for the accommodation of its concerns, as it may deem suitable for its interest, but its charter. maybe altered, amended, or repealed at the pleasure of the General Assembly." In 1848, after the road was built, three stations were established in the town of Southington, named respectively Southington, Plantsville, and Hitchcock's, at which trains stopped for freight and passengers.

* See 43 Conn., 351; 44 Conn., 376.

In 1866 the legislature of the State passed a statute which contained the following provision in respect to the abandonment of railroad stations:

"Section 50. No railroad company shall abandon any station on its road in this State after the same has been established for twelve months, except by the approval of the railroad commissioners, given after a public hearing held at said station, notice of which shall be posted conspicuously in said station for one month prior to the hearing."

In November, 1873, the company became desirous of abandoning one or more of its stations in Southington, and for that purpose presented a petition to the railroad commissioners, representing that two stations properly located would be ample for the public convenience, and asking that the matter might be inquired into, and that the Southington or Plantsville station, or both, might be discontinued, and two stations, and only two, located in the town where the common good of all parties in interest would be most promoted. The requisite notice was given, and the commissioners having heard the application, on the 3d of February, 1874, made the following order:

"After a careful and full examination of the locality and business surroundings of the present located stations, and an extended hearing of all the appearing parties in interest, with their evidence and arguments of counsel, the railroad commissioners do find and approve, and do hereby order, that the New Haven & Northampton Company may discontinue and abandon the present stations. of Southington and Plantsville, as at present located, under and by complying with the following provisions and conditions, viz.:

"The New Haven & Northampton Company shall provide and erect a passenger station house near their new freight depot, as shown on the map exhibited and submitted, and after and in compliance with the plans and profiles also submitted for said passenger station building, and provide suitable and convenient approaches thereto; also suitable, convenient, and easy approaches to their new freight depot; all of which shall be done to the acceptance of the railroad commissioners. Said company shall also continue the same facilities for receiving and shipping freight by the car-load and unbroken, as at present enjoyed, to each and all of the parties who patronize their railroad by receiving and shipping freight thereby." Before this time the company had bought the ground and erected buildings adapted to freight business at the place indicated in the order. It afterwards, at an expense of ten thousand dollars, put up a building for passenger purposes, as required by the commissioners. This being acceptable to the commissioners, the stations of Southington and Plantsville were abandoned by the company, and both passenger and freight trains stopped at the new place only.

At the succeeding legislature, in May, 1875, an act was passed "establishing a depot at Plantsville," as follows:

"Section 1. That if at any time within six months after the passage of this act, any of the petitioners, and others who may act with them for that purpose, shall erect at Plantsville, contiguous to the railroad, a depot building, and convey the same, with the land on which it is situated, and the land reasonably necessary for the approaches thereto by the railroad trains, to the New Haven & Northampton Company, to be used for railroad purposes, it shall thereupon become the duty of said company, and it is hereby ordered, to stop at such depot thereafter its regular passenger and freight trains passing over said railroad, for the purpose of receiving and discharging passengers and freight. And all the provisions of the Revised Statutes applicable to railroad depots and stations shall be applicable to said depot in the same manner as though said depot had been erected and established by said

company.

"Sec. 2. Said order may be enforced by mandamus by the attorney for the State for the county of Hartford, or at the relation of any inhabitant of the town of Southington, in said county; and the charter of the New Haven & Northampton Company is hereby amended according to the provisions of this act."

The petitioners named complied with the provisions of the act, and, having tendered the company a conveyance of suitable depot grounds and buildings at Plantsville, demanded that the regular passenger and freight trains running on the road be stopped there. This the company refused to do, and the attorney for the State for the county of Hartford now seeks by mandamus to enforce the law. The court below gave judgment against the company, holding, among other things, that the act of 1875 did not impair the obligation of any contract rights which the company had acquired from the State. Upon this ground the case has been brought here by writ of error.

It was conceded in the argument that there is nothing in the charter to prevent the State from passing the law complained of. Confessedly the power of amendment which was reserved meets this part of the case, but it is claimed that by the action of the railroad commissioners the State has become bound by a contract not to exercise its legislative power so as to require the establishment of a depot at Plantsville.

As it seems to us, the Court of Errors of the State took the right view of the statute under which the commissioners acted when they said, in State v. N. H. & N. Co., 37 Conn., 163, its object was "to prevent railroad companies from arbitrarily changing their places of business on the road, to the prejudice of those who, relying on the permanency of such places, shape their business accordingly." The powers of the commissioners, as agents of the State,

in this particular are confined to such as are necessary for the accomplishment of that object. They may, after a public hearing, approve of that is to say, give the assent of the State to-the abandonment of a station which has been established twelve months or more, and that is all they can do. They may, as was held by the Court of Errors in State v. N. H. & N. Co., 42 Conn., 59, direct that their approval take effect only when the company shall have provided suitable accommodations for the public at some other place; but that is only a conditional approval of the abandonment. When the new accommodations have been provided and the old station abandoned, nothing more has been accomplished, so far as the company is concerned, than a lawful abandonment of an old place of business. The powers of the State over the charter remain just as they were before. Until the act of 1866 the coinpany could abandon its stations at will, and the State, by charter amendment, or even by a general law, night require their restoration. After that act the power of abandonment by the company was restricted, but the State retained all its old authority. The commissioners were given no power to contract for the State or the public. All they could do was to say yes or no to a simple request by the company for leave to abandon an old station. If they said yes, the abandonment might be made; if no, the station must be continued. In this case the commissioners said "yes, when the new accommodations are furnished." The new accommodations were furnished, and the station was abandoned accordingly. Such was the view taken of what was done by the Court of Errors in the case last cited (42 Conn., 59), and we think it is correct. The commissioners entered into no agreement with the company. They simply said, Complete your proposed accommodations at the new station, and we will assent for the State to your abandonment of the old one. It follows that the new law impaired no contract obligation of the State, and the judgment of the Court of Errors is consequently affirmed.

Afirmed.

See as to the construction of the contract contained in the plaintiff's charter, and in regard to the power of the legislature to impose additional duties and burdens. Proprietors, etc., v. Haskell, 7 Me., 474; Read v. Frankfort Bank, 23 Me., 318; Roxbury v. B. & P. R. R., 6 Cush, 424; Fitchburg R. R. Co. v. Grand Junc. R. R. Co., 4 Allen, 198; Com. v. Easton R. R. Co., 130 Mass., 254; Gibson v. Oliver Lee & Co.'s Bank, 21 N. Y., 9; Matter of the Reciprocity Bank, 22 N. Y., 9; White v. Syracuse, etc., R. R. Co., 14 Barb., 559; Story v. Jersey City, etc., Plank Road Co., 16 N. J., Eq., 13; State v. Miller, 30 N. J., 368; State v. Mayor, 31 N. J., 575; Perrin v. Oliver, 1 Minn., 202; Madison R. R. Co. v. Reynolds, 3 Wis., 258; Whiting e. Sheboygan R. R. Co., 25 Wis., 167; Sherman v. Smith, 1 Black, 587; Pennsylvania College Cases, 13 Wall., 191; Tomlinson v. Jessup, 15 Wall., 454; State v. Harflinge, 31 Wis., 262; Chicago, etc., R. R. Co. v. Iowa, 4 Otto, 155; Peik v. Chicago, etc., R. R. Co., 4 Otto, 164; Chicago, etc., R. R. Co. v. Ackley, 4 Otto, 179; Winona, etc., R. R. Co. v. Blake, 4 Otto, 180; Stone v.