55 N.H. 531 | N.H. | 1875
Lead Opinion
Act of 1867, chapter 8 — To Prevent railroad monopolies.
It will be convenient to look at the third cause of demurrer first. That is, "Because the said alleged contract is not contrary to any law of this state, and it does not appear by said bill that the same is unreasonable or injurious to the plaintiff." The bill is founded upon the act of 1867, ch. 8, which provides, sec. 1, "That two or more railroad corporations, chartered by the legislature of this state, constituting the whole or part of different lines of route for public travel and transportation between any two cities or towns, or between any city and town, either within or without this state, forming rival and competing lines of route between such points shall not be allowed to consolidate such roads or lines; and neither of said lines, or any road or roads composing the same, shall be run or operated by any such rival and competing line, or any road or roads, or portion thereof, under any business contract, lease, or other arrangement, but each and every railroad corporation so situated shall be run, managed, and operated separately by its own officers and agents, and be dependent for its support on its own earnings from its local and through business in connection with other roads, and the facilities and accommodations it shall afford the public for travel and transportation under fair and open competition, unless such lease, contract, or arrangement be first authorized by the legislature and approved by the governor and council." The allegation of the bill is, that the Boston Maine Railroad, a corporation chartered by the legislature of this state, and the Eastern Railroad, a Massachusetts corporation, but which, on the first day of May, 1874, and for a long time prior thereto, did, and does now, run, operate, and control certain railroads chartered by the legislature of New Hampshire, on or about the first day of May, 1874, entered into a contract, agreement, or arrangement, by the terms of which the said *538
Boston Maine and Eastern railroads should each retain sixty per cent. of its gross earnings between all competing points of their respective routes and the city of Boston, to pay the running expenses of the respective roads, and the balance of said gross earnings, being forty per cent. thereof, should constitute a common fund to be divided equally between said roads. The question is, whether such a contract and arrangement comes within the prohibition of the act. It is argued, on behalf of the defendants, that the latter part of the section quoted is intended to qualify and explain the preceding clauses, and not to establish a new limitation. The whole section together seems to me quite plain, and when so read the last clause appears to be a specification inserted to make more definite and certain the application and effect of what precedes. First, the consolidation of roads or lines is prohibited in general terms; then the running of one rival road upon any arrangement by another is prohibited; then the running, management, and operation of every such railroad by its own officers and agents is enjoined; and then comes the provision that each shall be dependent for support upon its own earnings,c., — that is, shall not be dependent for support upon the earnings of another, — which seems to be little more than a corollary from what comes before, a specification of an act in the nature of consolidation which had been already forbidden. It seems to me not to admit of doubt that the arrangement set up in the bill comes within the prohibition of the statute. Currier v. Concord Railroad,
The first cause of demurrer assigned is, that one of the parties to this arrangement — the Eastern Railroad — is shown by the bill to be a corporation not chartered by the legislature of this state. The bill shows that the Eastern Railroad operates and controls the four roads mentioned, which were chartered by the legislature of this state; and the illegal arrangement complained of has reference to the running and operation of those roads. The case, then, is, that a foreign corporation, having obtained control of several domestic corporations, is operating them in violation of a law of this state; and the position is taken, that, because the act in question is in terms directed against corporations chartered by the legislature of this state, the remedies of the act cannot be applied. I think this position is not tenable. We must look at the act as a whole, see what was the supposed mischief to be remedied, and what was the intention of the legislature in supplying the remedy. It is entitled "An act to prevent railroad monopolies," and its whole scope and manifest import are in harmony with its title. Its provisions are general, and obviously intended to apply to all railroads within the state so situated with respect to each other as to come within its terms. No one can suppose the intention was to except from its operation railroads within our territorial limits, and chartered by the legislature of New Hampshire, which have passed under the control and management of a foreign corporation. Nothing short of the most explicit and unequivocal language would warrant the inference of a legislative intent so anomalous and unjust. The act provides that *539 two or more railroad corporations, chartered by the legislature of this state, c., shall not be allowed to consolidate such roads, c. I think this prohibition is sufficiently broad to forbid any other legal person who may get control of such railroad corporations to do the thing which the corporations themselves, are thus enjoined from doing. The application of the statute was clearly intended to be general; and it seems to me it cannot be held to mean anything less than that roads of railroad corporations, chartered by the legislature of this state, shall not be consolidated, c.; and that, when any one else obtains the control of such corporations, such other person must be held to stand in their place and answer their legal obligations.
The question raised as to the jurisdiction of the court seems to be the same that was settled in March v. Eastern Railroad,
The fourth cause of demurrer, as I understand it, cannot be sustained without holding that a railroad corporation, chartered by the legislature of this state, may be absolved from obedience to the laws of the state by the fact that its road within our geographical limits forms part of continuous line extending into other states. Whether delicate questions may arise in fixing the final order in the case, it would be premature now to inquire.
It is admitted that the plaintiffs cannot have the discovery prayed for — Currier v. Concord Railroad, supra; but I think, upon the facts stated in the bill, they are entitled to the relief prayed for, and that the demurrer must be overruled.
Concurrence Opinion
The statute, an alleged violation of which is the matter complained of, seems to me to have been drawn so as exactly to embrace this suit, as it particularly specifies those cases in which railroads, existing under the laws of New Hampshire, form parts of lines, without limiting those lines to the state.
The injurious effect of a consolidation is the prevention of competition, and that wholesome restraint upon exorbitant fares which can only be secured by free competition. A contract, which provides for dividing the earnings, after deducting a certain percentage for expenses, and which, therefore, makes it indifferent to the parties to the contract in which of the lines the passengers or freight are carried, contains in itself the most essential element of consolidation, and is, therefore, in violation of the law.
It is clear, also, that this court has jurisdiction over the corporations within the state, and whose roads are within the state. It cannot possibly make any difference whether these roads are managed by corporations within the state or out of the state. The process of the court can reach the roads within the state, which is enough for all the purposes of this suit. The case of Currier v. Concord Railroad,
SMITH, J. The provisions of the act of 1867, ch. 8, cannot be evaded by the leasing of a railroad chartered by the legislature of this state, and located within the state, to a railroad corporation chartered by and located in another state. Railroads being designed for the public accommodation, like other highways, are public, and at all times subject to the control of the legislature. Gen. Stats., ch. 146, sec. 1. When a foreign corporation obtains the control, by lease or otherwise, of a corporation which owes its existence to a charter granted by the legislature of this state, it must operate such domestic corporation agreeably to the provisions of our laws, and in obedience to such restrictions as the legislature may see fit to impose. It is difficult to see how such foreign corporation can have any other or greater rights than those granted to the corporation to whose rights it has succeeded. It would be strange, indeed, if a foreign corporation could obtain possession and control of a corporation indebted for its existence to the legislature of this state, and at the same time claim exemption from its authority.
I concur in the views expressed upon the other questions in the case.
The discovery prayed for must be denied. Currier v. Concord Railroad,
The demurrer must be overruled.