the surviving or continuing arbiter or arbiters, and in every such case the decision of such majority shall be binding on the parties hereto. Provided nevertheless, that the passenger rates on through business of the said Peninsula Railroad shall not be reduced below three cents a mile without the written consent of the said arbiters, nor shall the said special stock be increased beyond the amount now authorized by the party of the second part, and such additional amount necessary for the conversion of bonds issued or to be issued and secured by the aforesaid deed of trust, without the consent of a majority in interest of the holders of such special stock, to be expressed in writing, or at a meeting duly held, or the consent of the Peninsula committee aforesaid, or a majority of them. "ART. 11. The said consolidated company hereby formed under the name of the Chicago and North Western Railway Company aforesaid, shall assume, and does by these presents assume, the payment of the bonds aforesaid of the said party of the second part, commonly known as the First Mortgage Sinking Fund Land Grant convertible bonds of the Peninsula Railroad Company of Michigan,' issued, or to be issued, in conformity with the provisions of the deed of trust aforesaid, and of all interest accrued and to accrue thereon according to the tenor thereof, and of the coupons thereto attached, and also, of all contributions to the sinking fund, for the redemption thereof provided by the deed of trust aforesaid, and the said consolidated company shall observe, keep and perform, and does hereby promise and agree to observe, keep and perform, all and singular, the requirements, matters and things by the deed of trust last aforesaid provided to be observed, kept or performed by the said Peninsula Railroad Company of Michigan, and that the provision in the said bonds contained for the conversion thereof into stock of the second part, shall apply to the conversion thereof into the aforesaid special stock. "ART. 12. The holders of the said Chicago and North Western Railway Company Peninsula Special Stock, and of the present stock of the party of the second part, shall have the right to vote in all corporate meetings of the consolidated company hereby formed, in the same manner as the holders of the stock of the party of the first part, and the holders of the bonds of the party of the second part, shall have the right to vote on the said bonds, as provided therein, at every general and special meeting of the stockholders of the consolidated company. “ART. 14. All joint debts, guaranties and liabilities, existing against either of the parties hereto, shall be, and hereby are, assumed, and agreed to be provided for, paid and discharged by the consolidated company hereby formed." The entire agreement is most extraordinary in its provisions; and increases the stock, debts and liabilities of the Chicago & North Western Railway Company, several millions of dollars. Is it not plain, therefore, beyond anything that can be suggested, that this last act on the part of the Chicago & North Western Railway Company, is the crowning act of destruction (if allowed to stand), of all the rights and interests of the stockholders of the Galena & Chicago Union Railroad Company? Does it need any argument to prove that the addition of millions of dollars of debts and liabilities to the original Galena & Chicago Union Railway Company will produce an injury? Does it require any argument to show that this case comes within the rule laid down by this court in the case of Clearwater v. Meredith, 1 Wallace, 39-40? If it does, does not the facts and circumstances themselves, furnish the most overwhelming and convincing argument that could possibly be made? XXII. Expediency has nothing to do with the legal questions at issue—but was the trade a good trade-for the G. & C. U. R. R. Co. ? 1. THE EXPEDIENCY. 2. THE TRADE. In Shrewsbury and Birmingham Railway Co. v. London and North Western Railway Co., 4th DeGex, Macnaughten & Gordon's Reports, page 132, Lord Justice TURNER says: "In determining questions of this nature, courts of justice, as I apprehend, are bound to consider not what in their judgment may be most for the interest of the public, but what was the scope and object of the law, which is said to be infringed, or attempted to be infringed? What we have here to consider therefore, is, what was the scope and object of the acts of parliament from which these companies, and other railway companies (for there is nothing in this respect peculiar to these companies) derive their powers. The great undertakings of these companies could not be carried out by private enterprise, and parliament has, therefore, with a view to the public good, authorized the constitution of large bodies, acting by directors, for the purpose of carrying them out; but these bodies have no existence, independent of the acts which create them, and they are created by parliament with special and limited powers and for limited purposes. Whether parliament has wisely limited their power, or the purposes of their incorporation, is not for us to consider. The fact of their having been endowed with such powers, and incorporated for such purposes, only shows that parliament did not think fit to intrust them with more extended powers, or to incorporate them for other purposes; and when, therefore, they exceed or attempt to exceed their powers, or to go beyond the limits of their incorporation, they are acting in controvention of the law which created them, and in opposition to what courts of justice are bound to consider to have been the object of parliament in their creation." In the case of the Commonwealth v. Erie and North-East R. R. Co., 27 Penn., 339, the court said that it was no justification of the violation of a provision of the charter that the public were more benefited than injured thereby. "This is not a case," said WELLES, J., in the case of Buffalo, C. and N. R. R. Co. v. Pottle, 23 Barb., 23, "where the court are at liberty to measure the advantages or disadvantages to the company, or its stockholders, or the convenience of the public, but a limitation of the franchise." In the case of the Great Western R. Co. v. Birmingham and Junction R. Co., 5 Eng. R. and Canal Cases, 189, the court said: "The great thing to be attended to in all doubtful cases is thisWhat is the plain truth, and justice, and honesty of the case? and if the court has that clearly laid before it, my opinion is, that it is the duty of the court rather to stretch a point, as against mere formal objections, than for the sake of mere form, to sacrifice the truth and justice of the case." In that case the court considered the amalgamation as a sort of "interim machinery," the ultimate object being spoliation. In this case the machinery is called consolidation, but even that synonym cannot invest the subject with the slightest charm when the legal test is applied. "In regard to the expediency of bringing this bill, the chancellor cannot, and has no right to judge. The orator has the constitutional and sole right of determining this matter, and if he thinks it expedient, we must acquiesce in it; and no plea of the public good, or inequality of interests involved, can justify the chancellor in denying to the orator which is clearly accorded to him by well established chancery principles. The public good is best promoted by an impartial administration of justice, according to the right of the case; and courts cannot measure the equality or inequality of interests in the litigant parties, and make that a basis for a decision, notwithstanding what has been urged in the argument." Byron Stevens v. The Rutland and Burlington R. R. - 2. Was the arrangement a good arrangement for the G. & C. U. R. R. Co.-and was the trade a good trade? These decisions, we suppose, are perfectly conclusive so far as the expediency of the matter affects the legal questions-but, as the answer relies almost exclusively upon showing to the court that the trade in question was a good trade for the G. & C. U. R. R. Co., we propose to consider, for a few moments, the facts pertaining to this statement, which constitutes three-fourths of the entire answer of the defendants in this case. It commences, it will be observed, with the first trial and experimental lines ever run by a corps of engineers, when laying out the road between Chicago and Free port; and with the artlessness of a child, relates the story of its wanderings through the woods, and the great number of adventures it encountered until it reached, in due season, a beautiful stream where it sat down and surveyed the shining pebbles, and was very much pleased, and then again wandered on uutil night came, and the youthful prayer was said, and consolidation set in; and it was then borne away by angel hands, and its little grave strewn with roses, and afterwards there is seen nothing but the figure of a little lamb reposing on its grave, bearing the simple inscription" Consolidation,"-and all is so beautiful, and fair, and innocent, that nobody would think of making a noise to disturb the sweet repose of the sleeper. This is the romance of the affair, and the court is called upon to look at the action of these two railroad companies about as childhood regards the Babes in the Woodsall innocence, and, therefore, irresponsible. A few real facts will show how soon this more than Arcadian simplicity is dispelled, and how soon the airs of the gentle shepherd disappear. The court will find, by an examination of the Galena and Chicago Union Railroad as it existed on the 1st day of June, 1864, that it consisted of one trunk line, which extended from Chicago to Freeport, and there connected with the Illinois Central, forming a direct line through to Dunleith, and that it had built and constructed just exactly two branches-one twenty miles long, starting at Belvidere and extending to Beloit, where it connects with a railroad in Wisconsin bearing the same name, which extends through to Madison; the other branch commencing at a station called the Junction, in Du Paige county, and extending through to Fulton City, a distance of about one hundred miles from that point. These are the only branches which have ever been built by the G. & C. U. R. R. Co. in any way, shape or manner. But, if any one was to read the answer which has been put in, in this case, they would be led to believe that the G. & C. U. R. R. Co. had built all the railroads in the North-west, or furnished funds to do it. And that the present consolidation scheme was only to carry out the purposes and objects of its creation, and that the Chicago |