165; People v. Holley, 12 Wend. 481; 19 Barb. 540; 7 Hill, 9; 9 Wend. 143; 14 Barb. 259; 4 Seld. 88; 15 Ohio St. 573; Sedgwick on Con. Stats. 325.

John J. Glidden, also for defendants.

I. As to the objection that the places of residence of the directors are not stated in the agreement for consolidation. The statute authorizing consolidation is not an act conferring any special privilege not granted citizens generally. It does not delegate any of the prerogatives of the state. Citizens generally have the right to amalgamate or consolidate their several businesses at will. The only franchises which the consolidated company obtains are those heretofore granted by the state to the several corporations consolidating. There is no new grant. It operates to restrict the grant by decreasing the number of corporate bodies authorized to exercise the franchises. The statute, therefore, contains none of the elements upon which the rule of a strict construction against the grant is founded, and therefore the rule has no application. Pierce on R. R. 492; Black v. Del. and R. Canal Co., 7 C. E. Green, 130, 402; 9 C. E. Green, 455. There is nothing in the character of the power to consolidate which would prevent corporations exercising it at will, in common with natural persons and without statutory authority. If this act was construed to be mandatory and applied to railroad companies within the state, then the places of residence of the directors would mean their various places of residence within the state, the particular city, town, or hamlet, and it would involve an absurdity-or an impracticability. At that time no board of directors had been or could have been elected. Railroad Co. v. Brown, 26 Ohio St. 223.

II. As to the objection that the lines of road were competitive. Companies operating lines of road which are competitive, do not for that reason cease to be "railroad companies within this state." It is admitted that both these companies were railroad companies within this state. The statute says, "any railroad company within this state," whose lines, etc., "may consolidate," etc. The statute in this regard will admit of no construction. All railroad companies in this state, the lines of road of which are constructed as stipulated in the statute, are, in terms as clear and strong as language can make them, authorized to consolidate. The statute in the breadth of its language includes all railroad companies, competitive as well as others, within this state. What the relator seeks to do is by construction to import into the statute words which are not to be found there, to wit: "provided the said companies are not competitive." This is not admissible. Sedgwick on Stat. and Con. Law, 194, 205, 207, 208, et seq.; 4 Ohio St. 383; 11 Ohio St. 232; 2 Ohio, 395; Brower v. Hunt, 18 Ohio St. 341. I presume, however, that it will be urged, that the lines of road of competitive companies cannot be so constructed as to admit the passage of cars

over any two or more of them continuously, without break or interruption, as this language is used in this act. I presume the words are used in this act in their ordinary well understood sense, and the agreed statement of facts furnishes the physical fact accomplished by the lines of road of these two railroad companies, as an answer to their theoretical reasoning that it cannot be done. If, however, it is contended that the legislature has used the word "continuous" in an obscure or equivocal sense, requiring construction, then apply the rule given by Sedgwick, p. 234. The history of the legislation on this subject clearly shows that competitive lines may consolidate.

III. As to the effect of a portion of the line of one of the roads being held under a lease. To each and all the railroad companies in this state is granted the franchise to consolidate with other companies when the lines of the consolidating companies are constructed as provided in the statute. This is frequently a very valuable franchise, for it very frequently happens that lines of road that are not paying operating expenses, and are practically valueless, become, as the result of consolidation with a through line, dividend-paying roads, and very valuable property. Query: When a road is perpetually leased, to which company does this valuable franchise belong, the lessor or the lessee company? Surely the lessor could not exercise it. 65 Pa. St. 209. The general railroad law of the state, together with the special privileges theretofore granted, not inconsistent therewith, was the charter of each and both of the late corporations now merged by consolidation into the Ohio Railway Co. By that charter each was authorized to acquire its "lines of road," either by construction, purchase or lease, or by the three modes combined, and was also, by its charter, authorized to consolidate with any other railroad company within this state, whenever its "lines of road" so obtained, or any portion thereof, are constructed as provided in the statute; and it is no concern of the state by which one of the several modes provided by the charter a railroad company has acquired any portion or all its "lines of road." It is all-sufficient so far as the state is concerned that the railroad company holds its "lines of road," or the various component parts of its line of road, by any tenure authorized by its charter. And would it not be a strained construction to hold that the legislature meant by the term "lines of road," when used in the consolidation statute, anything less than all the lines of road which the law authorized the railroad company to acquire? If the legislature had meant less than this, would not apt and appropriate restrictive language have been used to make that meaning plain? The statute authorizing railroad companies to consolidate, in its present form, with but slight immaterial changes, has been in force in Ohio for more than thirty years. There is a stare decisis applicable to a construction, the result of a settled, long

accepted, uniform interpretation of a statute, upon which the bar of the state and the people generally, by their advice, have acted, and created vast and varied property interests, at well as to constructions by judicial decision. 1 Ohio, 12; 3 Ohio, 555; 16 Ohio St. 407. The stockholders of these two consolidated companies have acted in this consolidation upon the faith of the correctness of that long-accepted and continuously acted upon interpretation of this statute, and under it have taken such action in consummation of this consolidation as that an adjudication by this court, now annulling this consolidation, would effect the result of great pecuniary loss and damage, the character of the property being such as that it does not admit of transitions, changes as to its legal status, pro and con, without seriously impairing the marketable value of the stock, which is the representative of the property.

R. P. Ranney, also for the defendant, made an oral argument, and W. B. Sanders was also of counsel for defendant.

OKEY, C. J.-George K. Nash, attorney-general, on October 25, 1881, filed in this court a petition in quo warranto. The action is against William H. Vanderbilt and other persons named, and it is alleged in the petition that those persons, with others too numerous to be brought before the court, have usurped the franchise to be a body corporate, under the name of the Ohio Railway Co., and that they wrongfully claim to possess certain corporate franchises, powers and privileges. The prayer is for judgment ousting the defendants from exercising such franchises, powers and privileges. The record consists of the petition, answer, reply, and an agreed statement of facts.

The burden is on the defendants to show by what authority they claim to exercise such powers, and the order of trial is the same as if the cause was for hearing on testimony. Consequently, we have held that under the statute (Rev. Stats. §§ 5190, 6760, 6772) the defendants were entitled to open and close in the argument.

The defendants claim to be such corporation, clothed with sh powers and privileges, under authority of certain proceedings had in the months of July and September, 1881, whereby the Cleveland, Columbus, Cincinnati and Indianapolis Railway Co. and the Cincinnati, Hamilton and Dayton R. R. Co., Ohio corporations, were consolidated into one corporation, under the corporate name of the Ohio Railway Co.

The Cleveland, Columbus, Cincinnati and Indianapolis Railway Co. is a corporation, with a line of railroad extending in a southwest direction from Cleveland, in Cuyahoga county, to Springfield, in Clark county, a distance of one hundred and sixty-three miles; and the Cincinnati, Hamilton and Dayton R. R. Co. is a corporation, with a line of railroad extending from Cincinnati, in Hamilton county, via Hamilton, in Butler county, to Dayton, in Mont

gomery county, Dayton being in a direction east of north from Cincinnati, and distant therefrom sixty miles. The authority to make the alleged consolidation is based by the defendants on section 3379 of the Revised Statutes, which is as follows: "When the lines of road of any railroad companies in this state, or any portion of such lines, have been or are being so constructed as to admit the passage of burden or passenger cars over any two or more of such roads continuously, without break or interruption, such companies may consolidate themselves into a single company."

As the southern terminus of the first-named road is twenty-four miles from the northern terminus of the latter road, being the distance between Springfield and Dayton, it is not claimed by the defendants that the consolidation could be effected under authority of that section, if the power to consolidate can only be exercised where burden and passenger cars can pass from the road of one company to the road of the other, "continuously without break or interruption." It is said, however, that it is not essential to a valid consolidation that such companies' own lines should be thus connected, but that where the consolidating companies, or either of them, holds from another railroad company a perpetual lease of its road, and such leased line is so constructed that cars may thus pass from the line of the lessee to the leased line, and from the leased line to the line of the other consolidating company, the latter company and such lessee may consolidate; in other words, that such leased line is embraced by the words of the section, "lines of road" of the consolidating companies.

As each of the consolidating companies is possessed of such leased lines, by means of which it is said such connection is made, the importance of this contention of the defendants is manifest, and hence it is proper to state more definitely the condition and situation of the several roads affected by this controversy.

The line of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Co., as already stated, extends from Cleveland to Springfield. This is by way of Galion, in Crawford county, and Delaware, in Delaware county. It also extends from the latter place to Columbus, in Franklin county; and another part of its line, extending from Galion to Indianapolis, Indiana, crosses the track of the Dayton and Michigan R. R. Co. at Sidney, in Shelby county. This constitutes the line of road which it owns..

The Cincinnati and Springfield Railway Co. is a corporation, with a line of railroad extending from a point near Cincinnati to Dayton. It also has, by lease from the Cincinnati, Sandusky and Cleveland R. R. Co., a line of railroad extending from Springfield to Dayton. These two lines do not directly connect at Dayton, but by arrangement between the Cincinnati and Springfield Railway and other railroad companies, a connection is made between the two roads, by means of a road used in common by several rail8 A. & E. R. Cas.-44

road companies. In 1871 the Cincinnati and Springfield Railway Co. (party of the first part), the Cleveland, Columbus, Cincinnati and Indianapolis Railway Co. (party of the second part), and the Lake Shore and Michigan Southern Railway Co. (party of the third part), executed an instrument in writing, called by the defendants a conveyance of the fee, or at least a perpetual lease, to the party of the second part, and by the relator called a running arrangement between the parties, which instrument contains numerous stipulations with reference to the construction of the line between Cincinnati and Dayton, the division of the earnings, and other matters, and by force of which agreement the Cleveland, Columbus, Cincinnati and Indianapolis Railway Co. acquired the right to run its cars from the terminus of its road in Springfield to Cincinnati, via Dayton; and cars of that company pass regularly over the roads stated, without break or interruption, from Cleveland to Cincinnati, a distance of two hundred and forty-three miles.

Among the stipulations in that instrument it is proper to mention the following:

"Nothing herein contained shall operate to grant and demise, or be construed to include the franchises to be a corporation granted to the party of the first part by the state of Ohio, or any other right, privilege, or franchise which is or may be necessary to preserve the corporate existence or organization of the party of the first part, and all the said franchises to be a corporation, and all the rights, privileges and franchises last aforesaid are reserved and excepted from these presents. And said party of the first part further covenants and agrees that upon the written request of said second party, its successors or assigns, it will appropriate, under the laws of the state of Ohio, such real estate, rights and interests as shall be required for the maintenance and operation of said railway; and the costs and damages thereof shall be paid by the party of the first part."

"At the end of ten years from the delivery of possession of said Cincinnati and Springfield Railway Co.'s railway to the said party of the second part, the railway and appurtenances of the said party of the second part shall be consolidated with the railway and appurtenances of the said party of the first part, in case the laws of Ohio shall then permit and authorize such consolidation to be made, and said consolidation shall be made upon the basis of the proportionate values of the respective railways and appurtenances of said first and second parties, as the same shall appear by the net earnings of each for the three years next preceding the time of such consolidation."

"The intent and purpose of this indenture is to form and construct a shorter and continuous railway between Buffalo, New York and Cincinnati, Ohio, of uniform gauge, for the transporta