ern Bk. of Ky. v. Roosa, 13 Ohio, 334. That which is asserted, then, to be lacking as to the right and title to that portion of the lines of road between Springfield and Dayton, is not in substance but in form merely. For all purposes of transportation-that is to say, for all purposes for which a railroad can be used-the Ohio R. R. Co. can exercise their franchises over that portion of their highway in the same manner and to the same extent as if they owned it, technically, in fee simple. Besides, the Cincinnati, Hamilton and Dayton R. R. Co. owned the road from Dayton to Toledo in fee simple. The road was constructed by the Dayton and Michigan R. R. Co. By an indenture between it and the first-named company, the former granted to the latter, its successors and assigns, its railroad from Dayton to Toledo, to have and to hold the same to it, its successors and assigns, from and after May 1, 1863, forever. Hence, inasmuch as one of the lines of road of the C., C., C. and I. Ry. Co. intersects at Sidney the line of road so granted, in fee simple, to the C., H. and D. R. R. Co., and these lines of road are so constructed at that place as to admit the passage of cars continuously, without break or interruption, the question as to whether a line of road composed in part of a road held by a perpetual lease, is a line of road, in the sense of the statute, is immaterial. Furthermore, if a leased road is not a part of "the lines of road" of a railroad company, the objections urged against the right of these companies to consolidate, upon the alleged ground that their "lines of road" are competing, vanish; for the reason that, under such a construction of the statute, the road which the C., C., C. and I. Ry. Co. holds, under perpetual lease, between Springfield and Dayton, and between Dayton and Ludlow's Grove, does not form a portion of its "line of road," and consequently, neither of its "lines of road" competes with "the line of road" of the C., H. and D. R. Co., extending from Dayton to Toledo, that being, according to the same construction of the statute, the only "line of road" of that company. The words "the lines of road of any railroad company," are broad and comprehensive. They are neither preceded nor followed by any other words which restrict their meaning. They include all lines of road which are covered by such general description. The same statute authorizes railroad companies to build and operate roads, to purchase and operate roads. Whether the title to the road be original or derivative-whether from original construction, or from purchase or perpetual lease-the road is aptly described as the road of the company so constructing, purchasing, or leasing it. Mahoney v. A. and St. L. R. R. Co., 63 Maine, 68; P. S. and R. R. R. Co. v. G. T. Ry. Co., 63 Maine, 90. To discriminate, further words of description must be used, such as "leased lines," "purchased lines," or "chartered lines." The words have no technical meaning. They are common words, and such laws are framed so as to be understood by "plain men.” The

words clearly do not mean a line of road which the company constructed and once owned, but which it has sold or leased perpetually, and to which it has not the present possession or right. If it could be contended that it was properly described as "the line of road" of either company, it surely could not be maintained that it was not properly described as the line of road of the company which actually and of right possesses and operates it under a conveyance in fee or perpetually. If the description would fit both companies, then either may consolidate. The construction contended for by the other side, that the phrase "lines of road" means chartered lines only, would produce absurd and unjust consequences; one of which would be, that whenever a portion of " the lines of road" of any company had been acquired by purchase, such company would be thereby disqualified from consolidating with any other company. Such disability would be founded on a difference in the mere mode of acquiring title. Surely a mere change of form will not, with reference to such a matter, affect the right. Suppose the easement upon which the road-bed of a railroad is constructed, is held under a perpetual lease, as is sometimes the case, would that fact prevent the company which built the road from consolidating? The lines of road of two or more railroad companies may run in different courses or directions, yet they may be so constructed as to admit the passage of cars over them continuously, without break or interruption, and thereby accommodate different routes of travel and transportation. But the fact that a company has several united lines of road, does not prevent it from consolidating. The statute creates no such disability. There is no reason why it should have done so. The statute imposes only a single restriction, namely, that the lines of road, or some portion of them, must have been so constructed as to admit the passage of cars over the roads continuously, without break or interruption. If their tracks are so constructed, either at a common terminus of each road, or between the termini of each road, the sole condition upon which the right arises, exists. In order to hold otherwise, it is necessary to annul the important clause of the statute in the words, "or any portion of such lines." If the intention had been to limit the right to companies having the same terminus, it would have been expressed in so many words. Nothing would have been more easy and simple than to have done so. Hence, the very fact that if this had been the object, it would have been expressed in language so clear that no human being could entertain a doubt about it, shows that such was not the object or intention. Hardcastle, Con. St. Law, 31, 2, and cases cited. The original act authorizing street railways to consolidate (S. & S.), and section 4809 Revised Statutes, authorizing the consolidation of turnpike companies, show plainly, that the legislative understanding of the controlling words of this statute is what we claim the words mean. Again, if the object of this statute had been to limit the right of

domestic corporations to consolidate only when they have a common terminus and when the several roads so united will form a single continuous line for the passage of cars, the intention would have been expressed as it is in section 3380, concerning the consolidation of domestic with foreign companies. If the same meaning had been intended, there would not have been such a difference in the language employed. Holt v. Lamb, 17 Ohio St. 386. Besides, the police and other regulations prescribed by statute in Ohio, in regard to the operation of railroads, are expressly directed to the companies having the management and control of the roads. Vide sections 3374, 3375, 3376, 3372, 3331, 3339, 3341, 3427, 3429, Rev. Sts. The sole criterion fixed from which to determine whether or not the forms of construction is such that the companies may consolidate, is the admissibility of the passage of cars. If the construction is such as to admit the passage of cars, all other particulars of construction are immaterial.

III. The objections urged against the mode in which the right to consolidate was, in this instance, exercised, are untenable. It is objected that the agreement of consolidation does not prescribe the place of residence of the directors of the Ohio Railway Company. There are several answers to this objection. To understand this matter, it is necessary to trace the legislation concerning directors of railroad corporations. The general corporation act of 1852 provided, section 9 (1 S. & C. 276), that there shall be seven directors of such a corporation, and contained no provision in regard to their residence. The general railroad act of 1847 was the same. The act of 1852 provided, section 21 (1 S. & C. 280), that on consolidation of railroad companies in this state, the directors, in their joint agreement, shall provide the number of the directors thereof which shall not exceed thirteen. It said nothing of their residence. The first act authorizing consolidation, of 1851, was the same. December 15, 1852 (1 S. & C. 322), it was enacted: "That any railroad company heretofore incorporated or that may be hereafter incorporated in this state, shall be and hereby is authorized, by a vote of a majority of the stock of such company, to increase the number of directors provided for in the charter of such company, to any number not greater than thirteen." This remained in force until amended, January 14, 1875. May 1, 1854 (S. & C. 369), it was enacted: "That a majority of the directors of each and every railroad company organized under the laws of this state, elected after the passage of this act, shall be residents of the state of Ohio." This remained in force until repealed by the Revised Statutes. April 10, 1856 (1 S. & C. 327), was first passed an act authorizing consolidation with railroads of adjoining states. It provided that the directors, in their joint agreement, may prescribe "the number of the directors and other officers thereof, and their places of residence." March 10, 1857 (1 S. & C. 310), section 82, of the corporation act

of 1852 was amended so as to read: "All officers and a majority of the directors of any incorporated companies organized under the provisions of this act, other than manufacturing companies, shall be residents of this state." This remained in force until repealed by the Revised Statutes. May 6, 1869 (66 Laws, 127), sections 21, 22, 23, of the corporation act of 1852, and which related to the consolidation of railroad companies in this state, were repealed and section 1, of said act of 1856, relating to consolidation with railroads of adjoining states, was so amended as to include railroad companies in this state, and section 2, of that act providing for the agreement was left unchanged. Its provisions then contained all the directions as to the mode of procedure in the consolidation of companies in this state as well as in the consolidation with railroads of adjoining states. March 30, 1877 (74 Laws, 71), these two sections were amended and repealed without any substantial alteration. They then remained in force until repealed by Revised Statutes, January 14, 1875 (72 Laws, 17), and which act provided for increasing or decreasing the number of directors of railroad companies. The general provisions of the Revised Statutes, relating to all corporations, are as follows: Section 3248. "A majority of the directors must be citizens of this state." Section 3267 provides for increasing or decreasing the number of directors within certain limits. The provisions of section 3294 of the Revised Statutes are applicable to railroads only. Section 3381, in relation to the joint agreement of the directors, now applies to consolidations of railroad companies, turnpike and plank-road companies, telegraph companies, mining and manufacturing companies. This legislation shows that the provision as to the agreement, prescribing, among other things, the places of residence of the directors of a consolidated company, was originally expressly confined to consolidations of a company in the state with a company of an adjoining state; and it found its way into the section as it now stands when the provisions of that section, which were originally in different acts, were amalgamated. This particular clause was evidently not intended to apply to such a consolidation as that under examination. So far as domestic corporations are concerned, there can be no good reason for any different provision as to the residence of the directors, in case the corporation is created by the consolidation of two or more domestic corporations, from that in case the corporation is originally created. If the joint agreement does not prescribe the places of residence, the general provision of the statute that "a majority of the directors shall be citizens of this state," will apply. It would probably govern, notwithstanding any express provision in that regard in the joint agreement. If the joint agreement had prescribed that a majority of the directors shall be citizens of this state, that would have been a sufficient compliance with the statute, as opposing counsel con

strue it. The law of the state forms a material part of every contract or agreement as fully as if it were set out in it. 1 Ohio, 358. In the absence of any express provision in that regard the agreement should be read as though it contained the words, "a majority of the directors shall be citizens of this state." When the consolidation is of a company in this state with a corporation of another state, there is occasion and reason for a provision in regard to the residence of the directors of the new corporation so constituted. The statute should be restrained to the fitness of the subject-matter, and be construed reasonably. It is no way essential, or even expedient, in case of the consolidation of two domestic corporations into a single domestic corporation, that the joint agreement should prescribe the residence of the directors. Neither the public nor third parties have any rightful claim that such power should be exercised. They have no interest in the matter, and cannot be affected by it. The absence of such a stipulation is supplied by another part of the statute. If this clause were held to apply to agreements under section 3379, it would be treated not as fundamental, but as directory. The alleged omission in this agreement cannot, therefore, in any view be held to vitiate it. The insertion of it cannot be held to be a condition precedent to the validity of the agreement. It is not a fundamental provision, essential to the existence or action of the new company. In view of section 3248, which requires a majority of the directors of every corporation in this state to be citizens thereof, the alleged omission is unimportant, if it applies to agreements to consolidate under section 3379 at all; for, by reason of section 3248, the agreement could not have prescribed that a majority of the directors should be citizens of other states. But even if the discretion were held to be unlimited, and not absolutely restrained by section 3248, in case the discre tion be not exercised the provision of that section would apply, and the parties to the agreement must be held to have elected to be governed in this particular by that provision. There is a well-established distinction between acts which are essential to corporate existence, and those which are regarded as not essential.

be borne in mind that the act authorizing consolidation is an enabling act, and that one direction as to the mode or way in which the act enables something to be done may be as clearly directory as another may be regarded as mandatory. Whether we look then to the history of the clause in question, or to the subject-matter, or consider the immateriality of the provision itself, in its relation to other provisions on the same subject, we think the conclusion is irresistible that it is what is called only directory, not imperative. Chamberlain v. P. & H. R. R. Co., 15 Ohio St. 250; Spring Valley Water Works v. San Francisco, 22 Cal. 434; Mead v. Keeler, 24 Barb. 20; Cross v. Pinkneyville Man. Co., 17 Ill. 54; Troy & Rutland R. R. Co. v. Kerr, 17 Barb. 581; Judah v. Am. L. S. Ins.