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the railways in the country have been con-bria Iron Co. 105 U. S. 73 [26:1024]; Leaven

structed under state authority, and it cannot be supposed that they intended to abandon their power over them as soon as they were finished. The power to construct them involves necessarily the power to impose such regulations upon their operation as a sound regard for the interests of the public may seem to render desirable. In the division of author ity with respect to interstate railways Congress reserves to itself the superior right to control their commerce and forbid interference therewith; while to the states remains the power to create and to regulate the instruments of such commerce, so far as necessary to the conservation of the public interests.

If it be assumed that the states have no right to forbid the consolidation of competing lines, because the whole subject is within the control of Congress, it would necessarily follow that Congress would have the power to authorize such consolidation in defiance of state legislation, a proposition which only needs to be stated to demonstrate its unsoundness. As we have already said, the power of one rail way corporation to purchase the stock and franchises of another must be conferred by express language to that effect in the charter, and hence if the charter of the L. & N. Co. had been silent upon that point, it will be conceded that it would have no power to make the proposed purchase in this case. Asthepower 703] *to purchase, then, is derivable from the state, the state may accompany it with such limitations as it may choose to impose. It results, then, from the argument of the appellant, that if there be any interference with interstate commerce it is in imposing limitations upon the exercise of a right which did not previously exist; and hence, if the state permits such purchase or consolidation, it is bound to extend the authority to every possible case, or expose itself to the charge of interfering with commerce. This proposition is obviously untenable.

While the constitutional power of the state in this particular has never been formally passed upon by this court, the power of state legislatures to impose this restriction upon the general authority to consolidate has been recognized in a number of cases. Baltimore & O. R. Co. v. Maryland, 88 U. S. 21 Wall. 456, 470 [22:678, 683]: Shields v. Ohio, 95 U. S. 319 [24:357]; Wallace v. Loomis, 97 U. S. 146, 154 [24:895, 898]; New Bufalo Twp. v. Cam860

worth County Comrs. v. Chicago, R. I. & P. R. Co. 134 U. S. 688, 699 [33:1064, 1071); Liv ingston County v. First Nat. Bank, 128 U. S. 102 [32:359]; Keokuk & W. R. Co. v. Missouri, 152 U. S. 301 [38:450]: Ashley v. Ryan, 153 U. S. 4:36 [38:774], 4 Inters. Com. Rep. 664. In the last case it was broadly held that a state, in permitting railway companies to consoli date, might impose such conditions as it deemed proper, and that the acceptance of the franchise implied a submission to the con ditions, without which it could not have been obtained.

The power to forbid such purchase or consolidation with competing lines has been directly upheld in a large number of cases in the state courts, in some of which cases a violation of the commerce clause was suggested, and in others it was not. Haferv. Cincinnati, H. & D. R. Co. 29 Ohio L J. 68; State, Leese, v. Atchison & N. R. Co. 24 Neb. 143; Gulf, C. & S. F. R. Co. v. State, 72 Tex. 404, 2 Inters. Com. Rep. 335, 1 L. R. A. 849; East Line & R. R. Co. v. Rushing, 69 Tex. 306; Pennsyl vania R. Co. v. Com. (Pa.) 7 Atl. 368; Gyger v. Philadelphia City Pass. R. Co. 136 Pa. 96, 9 L. R. A. 369; Currier v. Concord R. Corp. 48 Ν. Η. 325; Texas & P. R. Co. v. Southern P. R. Co. 41 La. Ann. 970. See also Langdon v. Branch, 37 Fed. Rep. 449.2 L. R. A. 120; Натilton v. Savannah, *F. & W. R. Co. 49 [704 Fed. Rep 412; Clarke v. Central R. & Blig. Co. 50 Fed. Rep. 238, 15 L. R. A. 683; Kimballv. Atchison, T. & S. F. R. Co. 46 Fed. Rep. 888. In conclusion we are of opinion1. That a general right to purchase or consolidate with other roads was never conferred upon the L. & N. Co.

2. That the Chesapeake Co. was never vested with the power to consolidate its capital stock, franchises, or property with that of any other road owning a parallel or competing line.

3. That, conceding that the requisite power existed in both the above companies, § 201 of the Constitution of 1891 was a legitimate exercise of the police power of the state, and forbade such consolidation, at least so far as such power remained unexecuted.

The decree of the court of appeals of Kentucky is therefore affirmed.

Mr. Justice Brewer and Mr. Justice White concurred in the result.

161 U. S

ROSE'S NOTES

COMPLETELY REVISED EDITION

1917

Showing the present value as authority of all cases in this volume of reports as disclosed by all subsequent citations in the Federal and State courts, including

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Ann. Cas. (Am. & Eng.) (notes) 1916E | E. R. C. [notes]

1916D
10
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26

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with duplicate references to Am. Dec., Am. Rep., Am. St. Rep.,

Ann. Cas. (American and English), L.R.A., N. C. C. A., and the Reporter System.

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NOTES

ON THE

UNITED STATES REPORTS.

161 UNITED STATES.

161 U. S. 1-10, 40 L. Ed. 595, 16 Sup. Ct. 439, CHEMICAL NAT. BANK v. HARTFORD DEPOSIT CO.

Corporation's legal existence is not cut short by insolvency and appointment of receiver; applied to national bank.

Approved in Merchants' Nat. Bank v. National Bank, 231 Fed. 557, where national bank stockholders voted to go into involuntary liquidation and had liquidated agent appointed pursuant to Rev. Stats., §§ 5220, 5221, judgment against bank in favor of creditor does not give judgment creditor priority; In re Russell Wheel & Foundry Co., 222 Fed. 575, holding in bankruptcy proceeding, where intervening creditor objects that bankrupt is solvent, that adjudication in bankruptcy does not dissolve corporation; Moss v. Goodhart, 209 Fed. 104, stockholder owning ninety per cent of stock could procure bankrupt association to bring action at law upon refusal of receiver to sue, and suit in equity by stockholder against receiver to set aside sale of certain assets of bank at less than fifty per cent of their value is dismissed; Cheshire Prov. Inst. v. Anglo-American Land etc. Co., 132 Fed. 969, 66 C. C. A. 122, appointment of assignee in winding up of banking corporation, does not preclude judgment against it by Federal court; Anglo-American Land etc. Co. v. Cheshire Prov. Inst., 124 Fed. 466, holding proceedings under New Hampshire statute for winding up banking corporation do not dissolve same to preclude suit against it in Federal court; Jewett v. United States, 100 Fed. 838, holding Rev. Stats., § 5209, making it a crime for officer or agent of national bank to misapply its funds applies to bank in liquidation; Du Pont v. Standard Arms Co., 9 Del. Ch. 320, 81 Atl. 1089, general manager of corporation is not entitled to damages upon termination of contract for his services by receiver without notice; Camp v. First Nat. Bank of Ocala, 44 Fla. 508, 103 Am. St. Rep. 173, 33 South. 244, where note is in name of bank, but beneficial interest in another, suit may be brought in name of bank; State ex rel. First Trust etc. Bank v. District Court, 50 Mont. 262, 146 Pac. 540, order of judge (461)

suspending receiver upon filing by bank of disqualifying affidavit against judge in action by State against insolvent bank to have receiver appointed, was void; Farmers' Nat. Bank v. Suther, 28 Okl. 807, 116 Pac. 174, national bank may voluntarily liquidate and is not thereby dissolved as corporation, and may sue and be sued to wind up its business; Pederson v. North Yakima etc. Irr. Co., 63 Wash. 638, 116 Pac. 279, where broker's commissions for sales of land were to be paid out of payments by purchasers, and payments were not made because of company's failure to furnish water as agreed, broker is entitled to commissions and his right is not defeated by appointment of receiver; Hutchison v. Crutcher, 98 Tenn. 428, 37 L. R. A. 91, 39 S. W. 727, following rule; Jackson v. McInnis, 33 Or. 531, 72 Am. St. Rep. 756, 43 L. R. A. 129, 54 Рас. 885, receivership does not excuse presentment, demand and notice of nonpayment of deposit certificate; Pritchard v. Barnes, 101 Wis. 90, 76 N. W. 1108, bank is suable though all assets transferred. Distinguished in Muir v. Citizens' Nat. Bank, 39 Wash. 58, 80 Pac. 1007, national bank in voluntary liquidation need not register transfer of its stock.

Judgment may be rendered against bank on lease, notwithstanding receivership.

Approved in Coy v. Title Guarantee etc. Co., 198 Fed. 283, allowing recovery of damages for receiver's abrogation of lease stipulating for additional five-year term, where tenant had incurred large expense for improvements; Speckart v. German Nat. Bank, 85 Fed. 18, State court may adjudicate upon claims against insolvent bank; Wolf v. National Bank, 178 Ill. 95, 52 N. E. 898, bank's contract to repurchase bonds from vendee binds receiver; dissenting opinion in Lafayette Trust Co. v. Beggs, 213 N. Y. 296, 107 N. E. 649, majority holding judgment against bank docketed after superintendent of bank took possession of assets is subject to equity of superintendent and does not render title conveyed by superintendent to purchaser unmarketable.

Distinguished in Wells v. Hartford Manilla Co., 76 Conn. 40, 55 Atl. 604, refusing to hold insolvent paper-mill to contract to purchase large quantity of pulp at considerably more than market price; Chas. E. & W. F. Peck v. Southwestern Lumber etc. Co., 131 La. 181, 59 South. 114, appointment of receiver may defeat specific performance of corporation's contract to buy lumber, but does not affect corporation's liability for breach of contract.

Recovery for services and expenses under contract ended by insolvency and dissolution of corporation. Note, 69 L. R. A. 140.

State decision as to nature of demand against national bank for breach of lease involves no Federal question.

Approved in McCormick v. Market Nat. Bank, 165 U. S. 546, 41 L. Ed. 820, 17 Sup. Ct. 435, arguendo.

What adjudications of State courts reviewable in Federal Supreme
Court. Note, 62 L. R. A. 536.

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