Nebraska Newspapers

    SAYS THE CONTRACT IS VALID ,
Jnstlco Brcwor Decides the Famoni Heck
Island-Union Pacific Bridge Oaso.
JUDGE DUNDY'S ' DSSENTING OPINION ,
JjctiRtliy Ilcvlow of ( ha Cams In All Its
llcnrlngfl nnd a Decision on
the Koitr f lilisl'PolnU
Involved.
.Tustlco Hrcwor knocked the Union 1'nclflo
brldgo monopoly higher than fllldoroy's pro
verbial kilo. Ills decision In the case be
tween tbo Hock Island and the Union I'a-
rifle wan In favor of the I lock Island and In
favor of the enforcement of the specific per
formance of the terms of the contract. Ho
also decided that the saino ruling should hold
Rood in the cnso of the Chicago , MlUvnilltco
& St. Paul road against thu Union Pacific.
Before court opened tno room was crowded
with attorneys and predictions were freely
inado on the result of the famous caso. Thu
majority seemed to bo of tin * opinion that the
decision would bo against the Union I'acillc.
Both aldos were repicsented In court.
President H. K. Cable of ttio Hock Island ,
General Counsel Wlthroami Messrs Low ,
FUh mill Poppletoii woru on otio side of the
room unit Hon. J. M. ThuistonV. . It. Kelley
nnd C. H. Montgomery oceunled seats at the
other side. Thomas L. Klmhall , president
of the Ur.lon depot company , was present , as
weio a number of cltl/ens who have taken a
treat Interest In the cnso at bar.
As soon as court opeced Judge Thurstoti
asked fora ruling of the court on the Intro
duction of testimony at the beginning of the
argument , tending to show that the Hock
Island was not legally incorporated under
the laws of the slate. The court ruled the
papers out.
Amid ti solemn silence Judge Brewer pro
ceeded to read his opinion on the caso. Dur
ing the reading no sound but tno voice of tbo
court was heard except wlii-n the Justlco
referred to the teachings of Judge Dillon ,
when on the circuit bench , on the powers of
n court of equity. The natural deductions
drawn from the nets of the learned counsel
tor the defendants , when on tbo bench , were
no at variance with bis arguments as counsel
for the Union Pacific during tin ) present
case , that the remarks of Justice Brewer
caused a very audible smile to pervade the
sacrnd precincts of the court room.
Following is tbo onlnion of Justice Brewer
In full :
Parties to I IK : Suit.
"On the first day of Miiy , 1891) ) , that , which
on Its face purports to bo a contract between
Jive nilrond companies , to-wlt : The Union
Pacific railway company , Omaha At Uepublt-
cun Valley rail way company , Snllnn Ac South-
woslorn railway company , Chicago , Hock
Island it Pacific railway company and Chicago
cage , Kansas & Nebraska viailway company ,
was signed and acknowledged by the re
spective presidents of those companies , at
tested by their secretaries and received thu
Impress of their corporate seals. While live
companies joined thus In tbo execution of
this instrument , there were really but two
parties to the contract : HIP Chicago , Hock
island & Pacific ruil.vay company nnd the
Chicago , Kansas & Nebraska railway com
pany , representing ono interest nnd forming
one party , tbo throe other companies repre
senting the other interest and constituting
the other party. For convenience , the first
named will oo boicarter called llio Hock
Island party , and the latter the Pacific. Tbo
exact nature of the relations between the
members of these two parties , as respects
themselves , need not bs stated. It is enough
to say that there was on each side a unity of
interest and a unity of control. Each party
controlled nn extensive railway ystom. The
Kock Island ombiacnd three main lines , each
running from Chicago ono to Council
HlufTs , ono to Kansas City nnd tbo
third to Denver. The Pacitle ono from
Council Bluffs to Ogilon , one from Council
Bluffs to Denver , nnd another from Kansas
City to Denver. The Denver line of thu
Kock Island passes through St. Joseph and
Beatrice. 15y filling n gap between Council
Bluffs and Beatrice llio Hock Island would
secure n shorter nn'd better Denver lino. The
purpose mid scope of the contract was the
lllllng of this gap , nnd it provided therefor
by the Pacific giving to the Hock Island the
xiso of its track from Council Hlnffs to South
Omaha , tills trade crossing tbo Missouri
river on the Pacific's bildgo ; tbo building by
tbo Hock Island of a road from South Omaha
to Lincoln and the giving b.M thu Pacillo of
the use of Its track from Lincoln to Beatrice.
U'ho Hook Island proceeded to construct a
Voad from South Omaha to Lincoln , and
about the first of January of this
year sought to use the Pacific's
tracks between Council BlulTs and
South Omaha , and Lincoln nnd Beatrice ,
which use was denied by the Pacific. There
upon this bill was tiled In the district court
of Douglas county , Nebraska , to compel
specltlo performance of the contract. A pre
liminary Injunction was granted by the dis
trict court , though no possession was over In
fact taken , or use made of these lines by the
Hook Island. Immediately thereafter tbo
Pacillo removed the case to this court. In
duo course of time the pleadings were em
ployed , the proofs taken , and the case is now
before us for final determination.
Quest IOIIM Involved and Argued.
"Four questions have been presented nnd
argued with distinguished ability. They
nro : 1. Was the Instrument , as thus
sign ( d and attested , so autbori/od and exe
cuted as to become and bo a contract of the
corporations ? 2. If it was so authorised
and executed , was it ultia vlresj ! 1 If
not ultra vires , is it n contract of which a
court of equity may compel specific perform-
nn CD I ! . If It may , ought apeeill-
porforinnnco to bo decreed )
"With icgnrd to the first question : That the
contract was signed by the proper executive
oniccrs nnd that the formalities of execution
were .suniciont is not disunited ; and if it was
ono of those minor contracts which fall
within the scope of the ordinary powers of
chief executive officers , no question could
arise as to its being u contract of the corpora
tions. Hut It Is not .such a contract. It is
ono of vast moment , running for UJiO years
nud affect Ing largely the financial interests ,
business ami pulley of thu corporations. It
so changes the sweep of the futuru that no
incro incentive olllcor , of his own volition
nnd by virtue of the ordinary powers of his
ofllco , could commit the corporation thereto1.
But authority beyond that of thu ex
ecutive oftlccrs Is not . wanting. After
the contract bad been drafted and
on April ' . " , ' , 18W , It was Mllnnittod to the
executive coinmltteo of thu Union I'nclllo
railway company , and of that company's re
lation to tbo contract I first speak , and unan
imously unproved by all tbo members of that
"cbmml'tleo then present. The commlttoo con
sists of seven , and blx of the seven weio pres
ent.
"Thereafter , nnd on the JiOth day of the
same mcnth , the regular annual meeting of
the stockholders was held , at which over
tvto-ibirds of the capital .stock of the com
pany was represented ; towlt4:17,070shares : ;
nnd at such mooting this resolution was miati-
imotibly adopted : 'Hesolved , That the agree
ment hotweon the Union Pacific railway
company , thoSullna& Southwestern railway
company , the Chicago , Hock Island Ac Pacitiu
railway company , and tno Chicago , Kansas
& Nebraska railway company , dated May 1 ,
1SIX ) ( a copy of which Is herewith submitted > ,
granting to the two last named companies
truckage rlchts over the company's lines
from Council Bluffs to Omaha , Including the
Omaha bridge , and the lines of this compa
ny's Oicaba Ac Hopubllcan Valley brancn ,
from Lincoln to Beatrice , Nob. , ana pro
viding , further , for the use by this
comnany , of the Chicago , Kansas & No-
bra-ilia railway company's line.s between Mo-
photon and South Untchinson , Kan , nnd
the line from South Omaha to Lincoln , Nob. ,
on the terms therein provided for , ho and Is
hereby approved , ntid the action of the ex
ecutive commlttco In authorizing the execu
tion thereof i hereby ratified , approved and
confirmed.1 And at thu same mooting this
resolution was adopted : 'Voted unanimously
that the stockholders hereby approve , con-
linn and ratify all the actions of their board
of directors and executive-committee during
the past year.1 While the contract was
never formally presented to the board of di
rectors , and by sucn board authori/ed or up-
proved , y t. Immediately after thu anr.ual
election of directors m IbSO , the
met , r.nd after appointing
the executive coinmUtoo It 'voted that ,
vrhllo the board of directors U not In sossiou
tun ( ull power thereof , under too charter md
by-laws of the company , bo nnd hereby Is
conferred upon tha executive cnminHt"o. '
nnd this resolution was but a repetition of
: ho e passed by the boards of directors In the
ten preceding * years. This delegation of
power was by virtue of article I of the by
laws of the company , which roads : 'Tho
board of directors shall have the whole
charge and management of tlm properly nnd
olTccts of the company , anil they may dele
gate power to the executive commlttco to do
nnv nnd all acts which the board Is author-
1/ed to do , except such acts as by law , or
thoio bv-laws. must bo done by the board
Itself. ' In the original ehatto-of the Union
Pacific railway company , (12th ( statutes ,
ts'.i , neclioii 1) ) the power to make by-laws
was granted by this sentence : ' .Said com
pany , at any regular meeting of the stock
holders called for that purpose , shall bnvo
power to make by-law * , rules and regulations
as they shall deem needful and proper , touch
ing the disposition of the stock , property ,
estate and effects of the company , not Incon
sistent herewith , the transfer of shares , the
term of ofllcc , duties and conduct of their of-
flcors nnd servants , and all mutters whatso
ever which may appertain to the concerns of
said company. '
\Vlint the O lirrKldo Claimed.
"It Is clear from those quotations from the
records of the company , that so far as the
executive committed and the stockholders
could by their approval bind the corporation
to this contract they did so. As against
this , It Is contended that as the board of
directors did not formally net upon , either to
authorize or approve the contract , tbo cor
poration never became bound , because power
in respect to such matters Is longed solely in
the board of directors. And , secondly , that
if tills lie not Irue , and the stockholders arc
vested with power In regard thereto , the
vote of thu stockholders at the annual meet
ing was not sufllcicnt because in the call for
such meeting no mention was made of this
pioposcd contract ; and the minority of the
stockholders , who were not present , were
thus given no opportunity .to consider It nnd
never Joined In thn approval. Neither of
those propositions can bo sustained. By the
original Union Pacific act , there was created
'a body corporate and politic , in deed nnd in
law , ' which corporation 'was authorised and
empowered to lay out , locale , construct ,
furnish , maintain ana enjoy a continuous
railroad and telegraph , ' etc. , nnd was also
'vested with all the power , privileges and
Immunities necessary to carry into olToct the
purposes of this act as herein set forth. '
"Bv this act , therefore , was created n cor
poration , with all the power Incident to cor
porate existence. Ono of those incidents is ,
that the ownership of llio corporate property
is vested in the stockholder ; nnd with them
rests also the absolute and ultimate powers.
In the Dartmouth college case , 1 Wheat. , f > l8 ,
.fudge Story , speaking of an aggregate cor
poration , savs , ( page 1577) ) : 'Among
other things , it possesses the capac
ity of perpetual succession and of
acting by the collected vote or will of Its
corporate parts. ' It Is true , that the act
provides that Micro shall no certain directors
appointed by the government. Tills provi
sion was Inserted doubtless because of the
fact that the government , as second mortga
gee nnd n bountiful douor to the company ,
was largely interested. It is also true , that
subsequent legislation , (13th ( statutes , ; ! . " > 7 ,
section 111) ) , provides that til least ono govern
ment director shall be a member of each
standing committee. But there is nothing
in the original act , or anv subsequent legis
lation , giving to them either vote or control
ling power ; and fiom some ol tbo reports
which have been made In times past by these
government directors to the government , as
wull iis from saino of the developments In
this case , it would seam as though they were
too often regarded ns merely convenient and
useful ornaments. Whllo doubtless congress
could have vested others in tno boara of
ditcolors as such , or in those government
directors aluolutn and exclusive con
trol in matters lilio this ; yet It did
not. Not only did it , as appoaiM from the
provisions heretofore quoted , glvo to the
stockholders control over 'all matters what
soever which may appertain to tno concerns
of said company , ' but also Its express grant
of powers to the directors is by the same sec
tion limited to the election and appointment
of olllcers and agents , the location and con
struction of the road and llio matter of sub
scription. All oilier powers which the direc
tors have nro these which spring from the
nature of their ofllccs or from special grunts
from the stockholders.
Powers ol' Corporations.
"In this ns in any other stock corporation
with the stockholders rests not only the
ownership of the property but. Iho ultimata
and absolute po vor and control. Much Is
said in the books about thu ordinary and ex
traordinary powers of a corporation ;
the ono vested in the directors , the
other in the stockholders or members.
In I. Bench on 'Privuio Corporations , '
section Til , the rule as to the latter is thus
stated : 'To the members is reserved also the
right of applying to the legislature for
amendments of their charter , and the power
to accept or reject proposed amendments
thereof , to alter the articles of association , to
uuthori/a an Increase or reduction of the eap-
Ui.1 stock , to sell or lease the corporate prop
erty or modify the terms of an existing lease ,
to consolidate or merge the company with
other corporations ; and In general , all ex
traordinary or unusual powers not conferred
upon the directors , expressly or by necessary
implications , nro reserved to the members. '
If this statement of law bo corret , then this
contract Is ono boyoml the power of directors
to make and could be authori/ed only by the
stockholders ; for the making of such n con
tract is not among iho matters expressly or
by necessary implication flianteil by the
charter to the aiicctors. But I rest
little on this distinction , for any act , although
within the powers of n board of directors ,
when done by an executive ofllcor with the
direction or approval of the stockholders is
binding on thu corporation , although the di
rectors have never directed or approved of
It , unless by the terms of the chatter exclu
sive power therefor is vested In the directors.
Neither Is there force in the other objection ,
that the notlco of this annual meeting did
not specify Ihoso contracts ,
iSo Doultt of tlio Power.
"Tho charter , in the same section hereto
fore quoted from , provides for annual meet
ings of the stockholders , for the transaction
of business , to bu holdnn at such timu and
place and upon such noticu as may bo pro
scribed in tlio by laws. Notice of time anil
place was given ns proscribed by the by laws ,
and the iiieutlug was duly held. There Is no
by law requiring special mention of thu Mib-
Jects to bo considered at such mooting.
Every stockholder , thornforo , takes no-
Ucu of Iho Inct Ihat all business
which may bo transacted by the
stockholders is open for considera
tion nnd action at such meeting , and their
powers at such a mooting art ) lib vast anil
complete as tbo competencies of the corpora
tion.
tion."Indeed
"Indeed , at the tlmo tbo notice was given
of this nn mm I meeting this contract ; vas not
prepared , and could not have been specified
therein ; and the fact that other matters were
specified , In the notice In no manner limited
the powets of the stockholders at such meet
ing. Stnto vs Bonnoll , H5 Oh. St. , 10 ; War
ner vs Mower , 11 Vt , IIU ; I. Bunch on
'Private Corporations , , boo. 'J7'.i ' ; Sampson vs
S. M. Corporation , 'M Maine , "a ; I Horawou
on 'Private Corporations , " See. I32 ; Cook on
Stock nnd Stockholders , ' See. IW3.
"Summing up this question , the Instru
ment wiii signed nnd attested by the proper
officers. It was approved by the executive
committee , which executive coinmltteo
was granted ad interim by the
board of directors all Iho powers
of that board. Authority to
make such a delegation of power was given
to the board by the by-laws , Power to make
such by-laws was bestowed by the act of in
corporation upon the stockholdois , At the
regular meeting the contract was approved
by ull the stockholders present , being two-
thirds of thu untlru number. Under these
circumstances , If the contract was ono which
the corporation could make , It was fully au-
tborlzod and duly executed , and binding.
Question of Ultra Vires.
"So I pass to the second question : Is the
contract QUO which the corporation could
make , or Is it ultra viro I The doctrine of
ultra vires has been thoroughly sifted within
thu last thirty years Its extent and limita
tions clearly defined. Thomas vs railroad
company , 101 U. S. , 71 ; Brunch vs Josup , 10(1
U. S.UKs ; railroad company vs railroad com
pany , 118 U. S. , 2'JO ; railway and navigation
company vs railway company , U10 U. S. , 1 ;
transportation company v palace car com
pany , Kill U. S. , a . Two propositions are
settled. Ono ls that a contract by which
a corporation disables Itself from perform
ing tbo functions and duties undertaken and
Imposed by Its charter Is , unless the state
which created it consents , ultra viros. A
charter not only grants rights. It also 1m-
JMMM duties. An acceptance of those rights ,
Is an assumption of these duties. As It is a
contract which binds tno state not to Inter
fere with thoio rltfhU , so , HkowUo. It Is ono
which binds the corporation not to nbnndm
the dMchargo of those dutUM It Is not liho
ndeeJ orpitont , which vests In the grnntco
or patentee not only tlilo but full powurof
alienation ; but It Is mnro , It Is u contract
whoso obligations neither pnrtv , state nor
corporation , can without the consent of the
other abandon. The other Is , that the pow
ers of n corporation are such and such only ,
as Its charier confers ; nnd an act bovond tno
measure of those powers , as either expressly
slaled or fairly Implied. Is ultra vires.
"A corporation ha * no natural or Inherent
rights or capacities. Crj.ito.l by the state , It
las such powers as the slate has seen lit to
pivo It-'only thU and nothing more. ' And
so , when It assumes to do that which It has
not boon empowered bv the state to do. Its
assumption of power Is vain iho net U a
nullliy iho coulr.iet Is ultra vires. These
two propositions embrace the whole doctrine
of ultra vires. They are Its alpha and omega.
To determine the applicability of these prop
ositions lo the contract , wo must iiotico Us
fcalurus n little morn In detail. H Is too long
to quote In full , but the first section of iho
first article Is Its kernel. It Is ns follows :
from the Contract.
" 'The Pacific company hereby lets the Hock
Island company Into thu full , equal nnd Joint
possession and me of its mam nnd passing
tracks , no.v located and established , or which
may bo hereafter located and established , be
tween the terminus of such tracks In thu city
of Council Bluffs , in the stuioof Iowa , and a
line drawn at n right angle across
said iracks within ono and one-half
U'j ) miles southerly from the pres
ent passenger station of South Omaha ,
in thu state of Nebraska , Including the
blidgoon which said tracks extend across
iho Allssouri river , between said cities of
Council BlulTs and Omaha ; connections with
union depot tracks in Omaha , the side or
spur track loading from the main iracks to
the lower grade of tbo Pacific company's sid
ings nnd spur tracks In Omaha , and such ox-
lunslons thereof as may bo hereafter made ,
side tracks in Omaha on which to receive
fiom and deliver lo the Hock Island company
freight that may bo handled through Iho
warehouses , or switched by the Pacillo com
pany , the connections with the Union stock
yards tracks in South Omaha , nnd conven
iently iocaled grounds In Soulh Oinilia , on
which the Hook Island company may con
struct. maintain and exclusively use a tracker
or tracks , aggregating three thou
sand ( ll.UOO ) feet in length , for
Iho slorago of cars nnd other
purposes , for the term of W ) years , commonc-
ingon the first day of May , in tno current
year. For which possession and use of the
Hock Island company covenants , promises
and agrees to pay to the order of the said
Pacific company monthly during the contin
uance of said term tha sum of $ . ) ,7. > 0 , with the
proportion of Iho cosls nnd expenses actually
incurred during the month for which such
payment is made , in maintaining , rupaiiing
and suppHing with water that portion of
such main tracks Jointly usud and situated
east of tbo cast end of said bridge and in the
city of Council Bluffs , and in piylnp taxes
and assessments logallv laid and levied
thereon , which proportion shall bo to the ag
gregate of the amount so paid as the proportion
tion of the number of wheels per milo oper
ated during the same month by the Hook
Island company over said tracks or any part
thereof shall 'bo to the whole number of
wheels operated pormilo over the same tracks
during the same period , winch sum the P.i-
eitlo company agrees to rccslvo as full com-
ponsallon for such possession and use. '
Iicaso on Contract.
"It is said by the defendant that this is a
lease the language of demise is used and a
lease was denounced in the 101 , 131 , KM and
UK ) United States , supra , as ultra vires. To
which It is replied that In the resolution quoted
above , passed by the stockholders , approving
this agreement , it was called 'one granting
Irackagu rights. ' But neither the form of
expression on the ono baud , nor the name
ou the other , is conclusive. Wo must .see
that rights and privileges were in fact
granted , what burdens and obligations as
sumed , in order to determine whether that
winch was attempted to bo done was beyond
thacompetency of the corporation. Tne con
tention of the defendant Is substanllally
threefold : 1. That the contract if put In
force will at once disable the Pacific from
performing the duties imposed upon it by its
charter. 'J. Th.it if It will not at once
have that eiTcet. It will before the termina
tion of the ! ) ! ) ' . ) yu.irs of its term. y.
That the charter neither in terms nor by im
plication gives power to makosueh contract.
"Tho question us to whether u contract is
ultra viros or not may arise In a controversy
between the state and a corporation , or
between the corporation nnd the partv with
whom it has assumed to contract ; and it may
well bo. that different rulus of construction
apply in two cases. All grants , even erants
of corporate franchises , nro construed
strongly in favor of the government , and
against the grants. So when the state
challenges the action of ono of its corporate
creations , It miy insist on clear warrant for
such action. It may say : 'Point to the
letter of your authority ; I abide by my con
tract and protect you in the rights
of franchises I have given , abide
by your contract and assume to
do no" act in disregard of the duties
I have imposed , or beyond the authority I
have conferred. The rule of strict construc
tion exists In such a caso.
Hulo for Ilcpndiiitlon.
"But n milder rule applies when a corpora
tion seeks to repudiate a contract Into which
it bos formally entered. It is notseemly fora
corporation , any more than for nn Individual ,
to make a contract and then break it , or to
nbido by it so long as It is advantageous , and
rcpudia'to it when It becomes onerous. Thu
courts may well say lo such corporation , 'As
you have called it a contract wo will do the
s > amo , ns you have enjoyed the benefits when
It was beneficial , you must bear the burden
when it becomes onerous ; unless it clearly
appears that that which you have assumed
to do is beyond vour powers. ' In railway
vs McCarthy , W United Stales St)7 ) the
supreme couit said : 'When a contract is
pot on its face necessarily beyond the scope
of the power of the corporation by which
it was made , it will in the absence of proof
to the contrary bo presumed to bo valid.
Corporations are presumed to contract with
in their powers , The doctrine of ultra vires ,
when Invoked for or aqainst a corporation ,
should not bo allowed to piovull where it
would defeat the ends of Justice or work u
legal wrong. In other words , courts should
bu clearly satisfied that a contract is ultra
vitos , bolero at life Instance of a corporation
they release It from tbo obligations which it
has voluntarily assumed. With this rule of
construction in mind. I pass to the considera
tion of thu three contentions of the do fond
ants ,
Union Piuilllo .Not Disturbed.
"It clearly will not operate at present to
disable the Pacillo from discharging its du
ties. Whllo the Hock Island U lot into pos
session and use , the Pacific is not put out of
possession nnd use. There is no surrender of
the exclusive use of any portion of Iho
Pacific's lino. It remains in the undisturbed
possession of ( every mlle of its track ,
can opuruto nil Its trains , and discharge all
the duties which it owes to thu gov
ernment or thu public. A different iiuos-
tion would arUo , if It had attempted by
this Instrument to diposo of the mil posses
sion of the sumo length of its iraek. Us ribll-
galiou lo the government is not to hold all its
tracks or property beyond the use or touch
of any other corporation. It goes no further
than to retain such possession and use us
will enable it to run all Us trains and carry
all its passengers and freight. No monopoly
of isolation from other currents of business
Is essential to this. It may do all thu busi
ness which U offered and still have a surplus
use of Its Iracks. Can It bu th.it Us obliga
tions to tbo government or thu publlo com
pels It to tot that surplus use llo idlui It is
rather fur lhan against the interest of thu
government which creates it and which is It
self iutuiestud as second mort ageo
and the holder of a largu claim
against It , that it coin all such
surplus use Into money. Surely If this bo so
It docs not come within thu scope of tha first
proposition.
"I shall not attempt to refer to the testi
mony In dntall. Indeed , I think It U con
ceded that if this contract was put today in
full operation thu Pacific would have ample
accommodations for nil Its business. In this
respect the case Is very different from these
cited from the supreme court. In them
there was a full surrender of possession. As
said by Mr. Justice Miller In thu Thomai
case : 'The provision for Iho complete pos
session , control nnd use of thu property of
the company and its franchises by the
lessee * Is perfect. Nothing is left In the
lessor but the right to rccelvo rent. No
power of control In the management of thu
road and In tbo exorcise of the franchises of
the company Is reserved. ' I conclude , there
fore , that this contract ls not objectionable
as now disabling the Paci.'lo from discharg
ing the duties imposed by Its charter But
the term of this contract U WO yean , and It
Is strongly insisted that long before that
llmo has boon reached Wo growing business of
the Pacific wll : domain ! the entire pos esslon
and ttso of all Its iracks and facltllies , and
that the length of thtf terms mikes that void
which might have bexn valid if for a few-
years , f !
Peep Into ; f lie Future.
"To this , In my Judgment , there are two
satisfactory replies : 'No man cm foresee
the future. U lilio wd have a debt lo believe
that the country will row In population and
huslncu , and have a right to expect that the
business of this particular corporation will
Iin'tv.uo ; vet wo uUo know , that with In
creased volume of bilsiutMs as a rule come
increased facllitiiM anil , means fortr.iusucllng
that UislncM. It Is n'ot to ha expected that
the business of anv r.irtroad will Increase in
the next twenty years In the same r.Ulo ns
the last Now roads are constantly being
built. Oilier channels of transpor
tation will arise ; and business so
Increasing will bo divided among
more. vVho , Indeed , can say that the
railroad Itself will bo the common moans of
lrans | > oitatlon twenty years hence May not
electric lines , on differently constructed
tracks , supercede the railroads as llio rail
road has suparcodod the canal ) Into that
lleld of speculation who may safely outer ,
ami what decrees may bo founded thereon ?
"But nirnin , the powers of n court of equity
do not end with a day. If thu changed con
dition of affairs twenty years hence shall
make tlio full use of its tricks and other fa
cilities necessary to the Pacific for the Iran-
suclloii of Us business and llio discharge of
Its dulios lo the government nnd the public ,
tlio powers of n court of equity are equal to
the emergency , and can relieve it from the
obligations of its contract ; for the obligation
of n corporation to nor disable Itself from the
discharge of Its dulies is a continuing ono
nnd all contracts which Its makes endure
only so long as their continuance does not
create such a disability.
Surplus Use Consider .
"This matter has embarrassed mo a great
deal , but I have como lo Iho conclusion that
'sufllcicnt to the day Is the evil thereof , ' nnd
strong enouuh and adequate for tomorrow
are thu powers of a court of equity. It Is at
least clear th.it the government is not in
cluded bv anv decree between these parties
ami whenever its rights are disturbed it may
interfere and compel , as against everybody ,
the full discharge of its duties by the Pa-
cilic. Neither can it bo said that tills con
tract Is clearly beyond the powers granted to
the Pacific. It is obvious to all that the ex
igencies of public interests have enlarged
the area of the incidental and implied powers
of a corporation. Witness the nuny things
which railroad companies today freely and
without question engage in , in furtherance
of their transportation business , which are
strictly not part of such business.
Their depots are often eating houses and
hotels , dining and sleeping cars are run on
many trains ; bath rooms and libraiios on
some ; hospitals aio fuinlshoJ , iusurincoto
employes is not uncommon. Vet who can
av that these thincs are a pirt of the laving
out , construction or oper.Hlon of a railroad ,
strictly spoakinir. Yet it would startle the
common sense of the business world If the
contracts of the railroad companies for the
carrying out of tnoso Incidental matters were
by the courts declared ultra viros.
"In the ca o at bar , as wo have seen , the
contract Is not one for the dispossession of
the Pacific company from the use of its
tracks or other facilities. It is pot ono dis
abling it from discharging its duties. It Is
simply ono to coin into money for its benefit ,
the surplus use of a part of its property.
Can It be that "such n contract Is
beyond the powers implied by tbo
grant ? Concede that under the power
to lay out , construct and operate a
railroad , It is not uuthori/cd to build tracks
for tno purposes of sale or lease ; but when
discharging its dulios it builds tracks for Us
own use , and uses them , if all tbo use U can
make is limited and tfioro is a largo amount
of surplus use , upon what reason can it bo
adjudged that the surplus use must necessa
rily be idlol It is a thing of value. It may
bu , as it is done bv thHi contract , coined into
moiiny. What right QI interest of the gov
ernment or public is prejudiced thereby !
If a railro.nl company builds a depot which
is larger than its prcsBflt needs require , may
it not rent ono room and receive profit there-
from ; or must it , Because it Is not aulhorizod
to juild buildings for rent , lot that room re
main vacant until the Increase of business
requires its usol Tno Pacific company may
net build tracks for the purpose of leasing
them ; but it must have at
least ono track for the passage
of its own trains. If its trains do not fully
use that track , as in this case they do not , it
has a surplus of use which is of value , and
which it may make prollt out of in any man
ner not inconsistent with its duties to the
nublic and its obligations to the government.
I think it may bo laid down as n general
proposition that a corporation which in the
discharge of the duties imposed by its char
ter requires property which it must have lor
Us own use , may , if there bo a surplus use
of such property , make a contract for the
disposition of such surplus use in any man
ner not Inconsistent with the purposes of its
creation. So I conclude that neither of
ttio three objections is well taken , and
hold that the contract is not ultra vires ,
Consideration nnd Compulsion.
"So far as the Omaha & Republican Val
ley railroad company is concerned , it is ob
jected that thu contract is invalid bauauso it
is without consideration ; the contract pro
viding that the Hook Island shall pay to the
Union Pacific railway company the rental
for the use of tha Omaha A : Hopubllcan Val
ley railway company's line , 'llioro is little
force in this. The Union Paeilie company
owns substantially all the stock of tbo Omaha
& Hopubllcan Volley railway company , and
a contract by a company that the rental for
Ihu partial usu of IU property shall bo paid
directly lo the stockholders , Instead of the
compiny , suioly cannot bu declared beyond
the power of the coiporation. This is nil
that need bo said In re poet to the relation of
the Omaha & Republican Valley railroad
company in thi" con tract.
"Third Is this contrict ono of which a
court of equity may compel specific perform
ance ! fortunately a lucent decision ol Ihu
supreme court in the case of Joy vs. " St.
LouN , Ms , Unlteil Stiles , 1 , relieves mo
from embarrassment. Tnut ca-vo was orig
inally heard before mo while I was circuit
Judge ; and after a careful examination , ami
though In the face of seemingly adverse pre
cedents , I decreed specific performance of a
contract for the Joint tiso of a track. That
decieo was afllrmcd by the unanimous opin
ion of the supreme court. All of the objec
tions w li1 ! ! are hero made were piwontod
thun nud overiulcd ; and the necessity ot the
interposition of a court of equity in cases of
Oils kind is clu.uly shown by Mr. Justice
Blatchford , In iho opinion of the court. The
spirit of that decision Is expressed in this
quotation : 'Hiilro.uls are common carriera
and owe duties to the publlo. The rights of
the public in lespect to these great highways
of communication should bo fostered by the
courts ; and It is one of the most tibuiul func
tions of a court of equity that Us methods of
procedure nro cnpublo of being made such ns
lo accommodate themSelves lo the develop
ment of thu Interest * of Iho public , in llio
progress of trade nnd ( radio , by now meth
ods of intercourse and tr.insporUtion. '
Power of an Krjtuty Court.
"I Know , to ono who" \ - > only familiar with
the narrow limits and fho strict lines within
and along which courts16f law proceed , the
net of a court of equity in taking possession
of a contract running r lor O'J'.l ' ' years , and de
creeing Us specific performance through all
these ye irs , seems ji strange exercise of
power ; but I behove , ijQit ] thoroughly that
the powers of a court of equity
tire as vast and its processes and nroceduro
ns ulnstiu as nil thu changing nmorguncics of
increasingly complex 'business relations , and
the protection of rights-cm dcmitid. And in
passing I tiny bo periltVvd | { to observe that
in tills reaped the dlsifugiushed jurist who
appears for tbo duftyidunts in tills case
tnuclit mu my llr.U. JJMSOII ; who , on the
bench of the circuit V'ourt of nils cir
cuit not only took possession of and
managed great railroad companies by re
ceivers ; built hundruds of mile * of riilroid
and oreatoJ millions of dollar ) of obli atlotu
against these roads. I then watcheu thoao
proceedings with something of ainn/anicnt ,
but the moro I studied the more I admired ,
till haying thus studied at the feet of ( i nil-
iiliul , I learned to holicvu that thu power *
and processes of a court of equity aru equal
to any nnd nvory oniurgeno * . They uio po
tent to protect the humblest Individual from
the opro3slonof [ ) tuu mUhtlosi corporation ,
to protect every corporation from the destroy
ing gtcod of Iho public : to stop stuto or na
tion from spoliating or dastro.ying privata
rlghis , to grasp wUh strong hand ovorvcor-
lioraiion and compel it to pxrform lu con
tracts of ovury iinluro and du Justioo touverv
Individual
' 'Mav I bo permitted to another suggestion :
The railroad i\oiid tut ) tv U In unroat Millions
of capital liuo : gunc into railroad n itorprisott.
stok ng piuiU iu rofrum. Uo ulutors vie
with legislator * In efforts to reduce rates.
To maintain such rates tv.s will secure Jiint
compensation for thocapit.il Investedrailroads
onler Into associations ami form tratllc con
tracts. But such co i tracts scsein but ropes
of sand , and such associations but glided
figure-heads , nud not eontrolllii' , ' forces. And
b ick of all U a wide and growing demand iliat
the government taKO possession of all
the railroads nnd Itsell become the greaicom-
mon carrier. Is It not pojsihlo that the pow
er. , of a court of equity may ) el bu found nil-
equate to the situation that such courts may
yet lay sirong bauds upvi thojo railroad cor
porations , and by conipt'lling performance of
contracts , secure stability , uniformity and
Jusilco lo all. and thus quiet thu clrtuor and
avoid any necessity of governmental posses
sion ami inunngunfonU
Ciuttini ; Uncle to the Text.
"But tills Is outside of the question before
us. Hamming lo th.i case : Counsel contend
that It Is dUttn.MilHhabta from that of Joy vs
St Louis in that tuoto win a great public
Interest to bo protected , which 'Justified ,
us was mentioned In tin opinion ,
Iho Interposition ot n court of
equity. I think no such distinction
ex i Us. There Is In this case n public Interest
as significant nnd deserving of protection.
The testimony disclose * thai before Ibis con
tract was entered into , tbo Ho.-k Island had
determined to build a bridge across the Mis
souri river at Omaha , and fill the gap between -
twoen Council Bluffs and Beatrice by Us own
linu In conjunction with the Chicago , Mil-
waukeoitSt Paul railway company it had
obtained from congress a charier for Iho
building of thu bridge , and uugotialions wuro
pending to secure the capital , some two or
three millions of dollar * , with which to do
the work. At that tlmo the olllcers of the
Pacific sought the oftlcors of the Hock Island
and SU Paul and prevented thu building of
thonow biidire by moans of this contract.
If this contract , had not been made ,
or If it should not now bo en
forced , two or three millions at least ot ad
ditional capital would bu put Into railroad
and brldgo construction , nnd such nn ex
penditure of money places an additional burden -
don upon the public , livery unnecessary mlle
ol railroad track or bridge that is built adds
to the cast of transportation , and surely the
public is Interested in sceinir that that cost
bo ns light as possible
Wliioli 14 Kconomy ?
"A very soiious economic and political
question is , whether thl free country has
not made a mistake In giving too large liberty
of railroad construction. Take a single
illustration : In tbo slatu ot Colorado
between Pueblo nnd Denver , are three
Independent lines of road , with separate and
distinct Iracks and rights-of-way. To say
nothing of the waste of lauds and the injury
to farms , the cost of these three lines of
road , I am assured , is much moro than
douolo that of n single right-of-way with
two Iracks ; and such single right-of-way
would bo adequate for all tbo business that
the Ihreo roads have done or are likely lo defer
for many years. The public which uses
these roads bears the burden of this extra
cost Would not its intert-Jts have boon
promoted , if by contract or law all these
railroads could have been compelled to unite
in a single linof So hero if Iho public can
pi event an Increase of railroad property by
the sum of $ JOUO.OlJ ) or $ .i,0)0,0iO ( ) ( , it saves
to itself the burden which that additional
expense would cast upon it. Further , a now
line running into Omaha cuts up and
destroys unnecessarily n largu amount of
property. So in this , as in the case of Joy
vs. SI. Louis , there is a public interest at
stake which justifies the intervention of u
court of equity. This is the case in which ,
and n contract of which a court of equity
may decree specific performance.
"I pass to a consideration of the last ques
tion : Ought Inls contract be spocilically en
forced ) Of course It is familiar law that
courts of equity do not always decree specific
performance of oven unuuestlonablv valid
contracts. Insutlleiancy of consideration ,
want of fairness or any special hardship re
sulting therefrom is sullleient to prevent a
decree of spuclllc performance and send the
pirtv to his action nt law for damages.
' Performance ' section
Pomeroy on 'Specilie ,
Us1 } ; Fry on'Specific Performance , ' 1SI , Ull
and 20J. These defenses aru interposed
here : It is insisted that Iho rental for the
use of the bridge and thu tracks between
Council BlulTs and South Omaha , to-wit ,
* ir > , ( )0 ) ( ) , is grossly inadequate. Contempor
aneous with this , another contract of similar
import was executed with the Chicago , Mil
waukee & St. Paul railway company , by
which it also was to pay a like rental , so that
the rentals secured uy these two contracts
for the use of the simo property amounted
to Si)00. ! ) ( ) A volume of testimony was taken
to show the vu iuo of the Pacific's property
for which this rental was to bo paid. Four
or tivu engineers of ability and real estate
men of experience toniliod fully in respect to
this matter. Their estimates were
very divergent , varying from three to
seven millions. 1 shall not attempt in
this opinion to review this testimony or
seek to determine which of these estimates is
most Tollable , Obviously the estimate of
Mr. Smced , the chief engineer of the Pacific ,
is too high , in that it includes property not
covered by the leaso. Probably the rnal
vaiuu lies somewhere between the figures ,
and nearer three than sevon' millions. If the
value bo seven millions , $90,000 rental is
only about l ! < f per cent , and if this
were the rental for the full and exclusive
possession , it would obviously bo too low ;
but there is only a partial possession nnd a
partial uso. Tbo rent is so much in excess
of that which the Pacific realizes from its
own usu of the property. Not only that ; by
section 7 of ariielo ! i of the contract , the
Pacilic icsorvos to Itself the right to lot
other companies into the liku possession and
use of this propoily , without sharing with
these lessees tlio rentals thus obtained. On
the other hand if the value of the property is
onlv llireo millions of dollars , llio rental is it
pur cent , and that lor only this partial use.
MiMiellM to tlio l ) < ; fcMHluiit.
"But beyond this Omaha property , the
contract provides for the use of each party
of portions of the otlioro" tracks ;
and the benefits which flow to the
Pacific from its acquisition of parts of
the Hock Island's tracks elsewhere in tlio
svstem , tire worthy of notlco in detorminin < r
tfiu suniciency of Iho consideration. There
ur < 5 other benefits , also of a pecuniary nature ,
the amount of which may not put hups bu
easily estimated , which will Inure the Pacific
from tlio pouring of business of tlio Hock
Iblaud and St. Paul road * over its tracks
rather lhan over an independent and separate
lino.
lino."But I place moro rollnnca upon this fur
ther matter. As heretofoio slnlud , iho con
tract was sought by the Paclllu. The then
executive olllcers of that company , dis
tinguished and competent railroad
gentlemen , ot long experience in
connection with thu property , In their
consultations us to the prlcu to bo
demanded , and before any conference with
tbo olllcors of tlio Hoeic Island and Iho St.
Paul , fixed SMI.DO. ) in iho Mini to bo do-
mamlod and $ ! . " > , tX:1 ) : as that to bo accepted.
Now , when gm.tlimion so competent to duter-
lulno such a mailer , so inluruslod In securing
the best poisiblo lenns for the Pacific , with
out suggestion from thu other slilo name < ; > ! ) , -
IUX ) as thu rental to bo asked , I think it would
bo strange fora court In lulit tli it a rental of
$1,1,0 M was grossly Inadequate. 'I his Is not
n case In whicn thu defendant bus boon led
into a contiact or Its terms fixed by inexperi
enced or incompntont men , but it sought the
contract , named Its price and received tiino-
lontlis of the consideration which It pro-
poaud to lake.
Local ( ompotitlon.
"It Is further objected that the Pacific
does a largu local business botwcui
Council BluIVs and South Omaha , from
which It makes much prollt , nnd that
under tills contract the Hojk Ibfaiul
may itself put on focal trains , and by reduc
ing'thu fares piactlcallv cut off this source of
revenue from thn I'acillc ; whereas , if It built
a separata bridge and a separata line , iho
amount of thu cost would bo so great that it
would be compeliuj to keep up rates. My
observation has luughl mu that tlio culling
of rales generally spiings from quarrels be
tween competing roaiU , and is lltilo if at all
affected by the cost of the property ; and if
the Kock Island nnd St Paul
were now forced to build a new brldgo and
establish en independent , line , there would bo
Just as much Imelihooa of the cutting of
r.itos. Asldu fro'n the existence of any
quarrel , sulf-lntorc.st will prompt thu Hoek
Island and St. Paul to muinuln anv ralo
which Is Just nnd reasonable. Moro lhan
that the Union Pacific bus no right lo expect
Bui another safeguard is this Uvury con
tract Implies good faith in the contracting
ji.irtios , -tio matter wbul may bu thu moro
"language of the Instrument , and if after hav
ing been let Into posioisloa tbo Hock Island
should In anv way abuse thu privileges given
by this loiso , thu courts are open to
furnish protection , even if lo secure it ,
u b'J nocuisurv to cancel the louse
"Jut there are cou3iderii' " > n * on the other
side which are worthy of mention , and which
tn.ik08 | > eclllo performance right , Whllo no
estoppel rims n nlnsl an ultra vlrot contract ,
yet It Is fair always to consider the situation
of the plaintiff If HpocllU * perfurnianco bo de
sired. The Hock Islnnd hits constructed n tlmo
from Lincoln to Onmlia , nnd has expended n
million and n half of money In reliance upon
this contract. It nnd thu St. Paul nbandonod
their schema of building n new brldgo , nnd
creating n new and independent line Into and
through Omana , If now specltlo performance -
formanco Is refused , what becomes of
the investment ! Muat It lie Idle
until a year or so have pas soil , In which anew
now brldgo and a new line into and through
Omaha can bo completed and who can toll
whether In the changed financial condition ,
those companies eoulil.secure the money with
which lo build llio bridgenud constract llnoi
Suppose tbo Hock Island was refused specific
performance nnd relegated to an action
for damages-of what avail would such ac
tion bo ! Long would bo the delay In prose
cuting It to judgment. What would be the
measure of damages f And If a large sum
were recovered , Is there any certainty , In
view of the heavily mortgaged condition of
tlio Pacific , Unit Iho Judgment could be col
lected I
Valid nnd UlndltiK *
" 1 think I need continue this discussion no
further. I huvo given this case long and
careful consideration. Summing ihe whole
mailer up : Thu defendant sought thu con
tract. Its executive olllcors weru genllenum
of long experience with the property nnd dis
tinguished ability as railroad olllcials There
was no concealment or deception , no fraud
or unfairness on Iho part of the olllcers
of the plaintiff There was no opportunity
for any , llio ofllcors of iho defendant com
pany fully understood the situation. To this
contract not only llio ovecullvo oftlcors , but
also the great body of the stockholders of the
Pacific gave their approval. The rental
finally agreed upon , was within a small
fraction of Ihat which the defendant
had determined to ask. Itelj ing on tills con
tract , the plaintiff abandoned plans and
negotiations ( or an independent line , and has
expended over $1.VH.IHM ) tu building from
Omaha to Lincoln. It will bo grievously
hurt if performance Is not decreed Per
formance will not disable tbo Pacilic from
discharging nil its duties , and per
forming all Us functions. If thu tlmo shall
over como in which performance shall tend
to have that effect , thu government at least ,
thu party having * Ihu right to complain , can
interfere and put nn end to tno plaintiff's
possession and uso. The contract Is for tbo
intuiustof the government ns second mort
gagees , ns coining surplus use of
tracks into money. It Is for tlio Interest of
the public in preventing Iho distribution of
valuable property , and the culling up of a
largo city bv now tracks and right-of-wny ;
and in avoiding an unnecessary investment
of largo sums of money in railroad building ,
and thus increase the r.nlroail burden. It Is
to the higher interest of all , corporations nud
public alike , that it be understood that there
Is u binding force in all contract
obligations ; that ro change of Interest
or change of management can disturb their
sunclitv or break llieir force ; but that the
law which gives to corporations their rights ,
their cap icities for largo accumulations and
all their faculties , is potent to bold them to
all their obligations , and so make right and
JtBtico the measure of all corpoialo as well
as Individual action.
"Tho decree will go for Iho plaintiff as
prayed for. The same considerations require
that a like decree bo entered in Ihu case of
tlin Chicago , Milwaukee & St. Paul railway
company. "
Judge Dandy DlHsontH.
At the conclusion of the reading by the
court there was a lively bustle in the court
room and Judge Thurston arose to address
the court. At n sign from Justice Brewer ,
however , ho resinned Ills seat and Judge
Dundy proceeded to render a dissenting
opinion In the ease , as follows :
"When these cases were first brought Into
this court I listened for throe days to the ex
tended argument on the motion to dissolve
the injunction that had been allowed In thu
stito court , and continue tlio Injunction in
force. For a time , I requested thu parties to
forego the hearing until Judge Cnldwoll
could bo present. At that tlmo it was under
stood ho was to bo here. I rocogni/od the
extent of thu obligations involved and I did
not care to grapple with the serious and coin-
plicated questions there presented without
the assistance of the circuit Judge , but the
piitios insisted on liaving the hearing , and
thuv bad it. Thu merits of the case , as they
are now presented , were presented at that
time , and 1 was asked to render a decision
tlioreon , and that , too , In the absence of a
word of testimony to settle the question of
thu validity of the contract as made
between the parties. I disposed of
the matter then. I wrote an
opinion , which expressed mv views on the
necessary questions , us 1 thought , were in
volved , nnd whieh it was right and proper
for mo to consider , i had hoped that my
connection with tbo matter would at that
time end. I bad no sort of an * idea of listen
ing to the argument when it was heard on Us
merits. The circuit Justice reached here for
the purpose of hearing the caso. 1 stated lo
him the position I was in , my feelings in the
premises , but Im requested mo to sit with
him when Ihe matter was heard on its mer
its , and I regarded the same , coming from
such n source , ns equivalent to a command
and felt bound to perform the request ho had
made. I have hoard tlio argument tor six :
days nearly that. 1 have not been con
vinced that a specific performance of these
agreements ought to bo decreed by the
court ; but I have no tlmo or op
portunity to reduce my views lo
writing , since I have known what views llio
the justice entertained. I may possibly do so
in the future , but ns it can make no sort of
dltTuronco to the general result , I suppose It
Is not necessary to do so. But It occurs tome
mo that If that contract Is to bo specifically
performed , and the court is to decree it , it
will put somebody In an attitude exceedingly
unpleasant.
Contract ImulCR . Mutuality.
' It is staled in Iho bill , and the contract so
provides , that the Union Pacillo company
guarunieos lo these two plaintiffs , in two
dlllotont suits , the right to usu the depot thu
same as It bus thu light to use It Itself.
Whatdupotf Have you lucogni/ud thu ex
isting condition of things hero to some ex
tent1 There is a place for a depot wheio
the depot ought to bu. Thu railroad company
does not own it confessedly it does not. It
owns tin lutoiust in it , it is Iruo ; but It has
guaranteed lo tlio plaintiffs in these two suiu
the use of that depot , us it shall be entitled to
it Itself. Has the depot been erected )
Now , suppose the depot is not erected , or
suppose U is erected , suppose it is completed.
It , belongs ton different corporation. It Is
thu property of other parlies. It dues not
belong to the Union Pacilic , the defendant In
this suit. It seems to mu that wo might Just
as wull say the Union Pacific has thu right tu
lease my house and my property lo either of
these plaintiffs , as It has to lease that depot ,
and so fur as that Is concerned , it occurs tome
mo It Is going too fur to ueuroo specific per
formance of ibis contract. If ibis form of
government Is to exist 1,000 years the same
a.s U is todaj , ami our Judicial system is to
remain the same , thuio is no way lo pel rid
of this dicruo unless it is reversed by tlio
supreme court of the United Stales or thu
appellate court. Suppose the plulnliffs
should fail to perform their part of
the contruct ; wiieio is thu romedyl
Tie up thu Union Pacific for O'J'.l years and
compel it to do precisely what it has u ieed
to do here , while the other parties to the
contract can uo released In two years from
thu obligations under U. Thuru Is no inutu-
nlity in the contract to tlu up ono a thousand
years , and Ihu other for two years only. At
iho expiration of twoyeais , ono can osc.ipo
all liabilities uudurtho contract If It.soes lit to
do so. Then again , so far as ono railroad Is
concerned , under this contract it would have
the Hrthl to operate Its line from the other
Hldo of thu river to South Omaha without
the expenditure of a dollar. It uses thu
Union Pacillo branches for the purpose of
transacting all Its business. It runs Its cars
over tha road from Council Bluffs to Omaha.
It is under no obligation to thu * lalo. It has
no riunt from the congro-ts ot iho United
Status to do Ihat , nor bus it from the state ,
so fur as I know. It Is conceded
to bo a corporation ; It starts somu-
whoru , but where , 1 don't know.
There is no'.hlng In the record that disulotui
when , wl.uru or how U U to ouorato that
road , unless it receive * tlio exclusive right to
da so. It is under no obligation lo the staia ,
and it can durivu the right u > do so ir < mi tu-o
sourceonlyfiom the general government
ot the United Stales , and , second , from thu
stato. If It has no such right from the
United Slates , then U bus not duilvud any
from the stato. Manilestlv , it is not from
the stato. It scorns U > me to be llio policy of
llio Htale. In all Us legislation , to require
puriius to build their own roads They are
not permitted , under the laws of the stalo. lo
consolidate whore their lines are parallel and
competing. They cannot do it. There Is
manifestly good reason fur It. To rpquiro
them to Invest their own money In the state ,
nnd It occurs to mo there Is iho best reason
In the world for It
ainy N'ot I Ivo to Soc It.
"With reference to the contract as made be
tween the Hopubltcau Valley And Iho Hock
Island companies , It seems to me there nro
two reasons why this contract ought not to
bo specifically performed. In my vltnv , be
fore. they will bo entitled to n decree requir
ing Ibis contract to bo specifically performed
it will bo ncces nry to .show that the plaintiff
was In condition tu do Ihu things thov con
tracted for. Is theio anything here to show
that the Heck Island rend is lo o\Ut fur 1,000
years I Is there anything to shew that the
Hepubllcan Valley road Is to exist for I , ( WO
years ) Of course this contract , If
It Is to be executed , must be
for n thousand years UW years.
There is nothing that shows that the Hock
Island road Is older than ( leorge \ \ ashing-
Ion's body servant Is supposed to bo , nor Is
there anything to show ihe tlmo Ihat the He-
publican Vallov read Is to enduie not n
word , so far as I am ablu to
see. Suppose one should cense to exist
In n hundred joins I That en. Is It. It seems
to mo they ought to show that they are In
IKisltlnntedo what they contract for , nnd
that the other party Is In condition to con-
trict for what they pit ,
"Then again , If the Hock Island road Is to
start at this place , or South Omaha , where
Us mad seems to terminate , and run from
there to Boitrh e.thol'nlon Pacific has nllno ,
Ihn Republican Vallcv , starling somewhere
in this neighborhood , and it runs to Be.itnce ,
nnd I Lore are two parallel nnd compottni ;
lines that have consolidated , toulliulcnla and
purposes , under tills lease , or agreement , or
whatever > eu may call it. That , llio
supreme court of thu state says in express
terms , cannot be permitted under the laws of
the state. If that is to DO so we are required
to do what the law prohibits I do not know
what the decree may provide for , out if these
contracts are to bo specifically porfoi mod It
will go much furtlnir , because all thej ask
hero Is Ihat they bo let alone and Unit the
Union Pacific shall bo restrained from inter
fering with the operation of these proposed
roads. Of course , after the decieo is pre
pared , if I sco anything open to criticism , I
shall possibly , to say the least , put my views
in writing , ns 1 tliink that much , being re
quired to sit nnd listen lo Iho nrgumenl , u
duo to mo. "
Will lti > Appealed.
After Judge Dundy had finished ( Jenoral
Counsel Withrow asked when a decree would
boenlciod. After u brief colloquy It was de
cided that counsel for both stiles should hold
n consultation nnd agree upon a decrto or , In
case of disagreement , i submit their differences
to tlio court Wednesday morning.
Judge Thurston said he should give police
Of appeal within the specified lime when Ihe
do-Too was entered.
After court tmd adjourned counsel for both
sides entered at oncu Into a confetonco on thu
decree.
Piusidoi't Cable declined to state anything
about tbo intentions of his company further
than to say that they should commeiico i tin
ning trams ns soon as tlio decieo had been
entered and the necessary arrangements
made.
.t i' nn : I'tni.
Tlio Kincrnld ! MC | Will bo Kully Ken-
resenlod in < lilonj ; " .
LOVPOV , July ! i7.- While wo hear a great
deal about what all foreign countries nro
going to do nt the Columbian fair at Chicago
in 1SIKI , little or no nttuntlon has been paid to
what Ireland Is going to do thero. It will
therefore please Irishmen and Irish-Ameri
cans in tlio United Stales lo know Ihat It has
been agreed among Irishmen of nil grades of
political opinion that Ireland Is to be fully
represented nt the fair , ami that her exhibits
are not , by any menus , to take a back soul.
Among these exhibits , it is already decided
that an 'mmunso relief map , now in posses
sion of thu commissioners of national educa
tion , will form ono of the features. It Is un
derstood that it will please many people ot
Irish descent , who have never had a glimpse
'of the I'old country , " to sco this "lifelike"
representation of the Emerald Isle , with its
rivers and mountains , hills and dales , towns
and cities , villages and hamlets , clearly de
fined. But. In addition to this , Ireland will
send an exhibit which will be worthy of any
country.
i.imnror TIII : ntiss.
New York Kditor ArrcMcil lor Pi-lnt-
in < ; lOIectrociitlou DotnllH.
Nr.v. YOIIK , July 27. Charles O'Connor
Hennessey this morning pleaded loan Indict
ment charging him with misdemeanor by the
publication in iho Evening News of tlio details -
tails of the execution of Slocum nnd Smllor
nnd thu others recently put to death by eloc-
trlcily at Sing Sing. His counsel handed up
a demurrer claiming that the statute under
which llio indictment was found was uncon
stitutional Inasmuch as It restrains the lib
erty of tlio press , guaranteed' lo It by the
constitution.
Stilt for Over a . Million.
OWASSO , Mich. , July 27. Depositions In a
case Involving over $1,000,000 have boon ta
ken at the national hotel here during Iho
past four days. Over forty witnesses have
been examined , but ns no reporter was al
lowed to enter the room no inkling of the na
ture of Iho caio could be received. A slovo-
pipe becoming disconnected in the room ubova
the following details were ascertained last
night.
Sidney Smith died In nn asylum for the In
sane in Now York city in ISM ! . Ho never in
timated that hu was worth a cent , but at bis
death ho loft Ins hoira ever SI.OOJ.OOO in real
and personal piopcrty. Aden Smith was ap
pointed administrator , and as the complain
ants allege , formed a co-partnership with tits
brothers and co-heirs , . ! . F. D. , and llurlan P
Smith , and bought up ull the other claimants
alleging thai they were not heirs Mid thaltho
personal pronoity only amounted to 3J' > , < ) IU. )
Believing this , Iho others settled for $ YXM ) , (
per family. Tlio defendant * claim tint lliev
bought on speculation. They all llvo In Now
York city , nnd nro represented hero by Will
iam Manna of that city. Thu western hein
are represented by S. D. White of Hamilton ,
N. Y. , and Judge Daboll of St. Johns , Mich.
>
Kt. Olave'H Clmruli Doomed
LOVPOV , July 27. Stops have been taken
to sweep uwav another of tlio old landmarks
of London. A placard on the doots of
the ancient church of St. Olavo , gives
notice that the site and building nro to bo
sold at auction , iho living having been lately
united with another city parish. This old
church is not u very handsome one , but it Is
one of the edifices erected by Christopher
Wren after llio great lire of London.
Pievlous 10 Ilia tire llioro stood on that same
spot the otiglnal church of St. Olave , which
wns known as St. Oluvu Upwull , the records
of which go as far buck us A. I ) . UUO ! u
the old church was bulled Robert Largen ,
"morccr of the city of London , " and thu
remains of William Cuxton , who Introduced
priming into England.
Tlntlr I'l'luclplcH Are Identical.
Ni.w YOIIK , July 27.- Central Labor fed
erations of Now York , Brooklyn and Hudson
county , Now Jersey , nt a Joint meeting , In
blriicled the delegates ID Ihu Brussels con-
\ entiun to say to Ihu convention that thu
principles of Iho united fcderallnn uf labor
and thu socialist labor party wuiu Identical
The Turning. Point
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linannvnl tlio linn of hinuiKjlH , . .
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whi rrnT It hut bun Irlul Hurt liaruul uy Ucu
Ili/3or >
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