The statute, an alleged violation of which is the matter complained of, seems to me to have been drawn so as exactly to embrace this suit, as it particularly specifies those cases in which railroads, existing under the laws of New Hampshire, form parts of lines, without limiting those lines to the state.
The injurious effect of a consolidation is the prevention of competition, and that wholesome restraint upon exorbitant fares which can only be secured by free competition. A contract, which provides for dividing the earnings, after deducting a certain percentage for expenses, and which, therefore, makes it indifferent to the parties to the contract in which of the lines the passengers or freight are carried, contains in itself the most essential element of consolidation, and is, therefore, in violation of the law.
It is clear, also, that this court has jurisdiction over the corporations within the state, and whose roads are within the state. It cannot possibly make any difference whether these roads are managed by corporations within the state or out of the state. The process of the court can reach the roads within the state, which is enough for all the purposes of this suit. The case of Currier v. Concord Railroad, 48 N.H. 321, sufficiently answers the fifth objection, and shows that the plaintiffs are entitled to relief, and that this general demurrer must be overruled, notwithstanding the plaintiffs may not be entitled to the discovery prayed for. *Page 540
SMITH, J. The provisions of the act of 1867, ch. 8, cannot be evaded by the leasing of a railroad chartered by the legislature of this state, and located within the state, to a railroad corporation chartered by and located in another state. Railroads being designed for the public accommodation, like other highways, are public, and at all times subject to the control of the legislature. Gen. Stats., ch. 146, sec. 1. When a foreign corporation obtains the control, by lease or otherwise, of a corporation which owes its existence to a charter granted by the legislature of this state, it must operate such domestic corporation agreeably to the provisions of our laws, and in obedience to such restrictions as the legislature may see fit to impose. It is difficult to see how such foreign corporation can have any other or greater rights than those granted to the corporation to whose rights it has succeeded. It would be strange, indeed, if a foreign corporation could obtain possession and control of a corporation indebted for its existence to the legislature of this state, and at the same time claim exemption from its authority.
I concur in the views expressed upon the other questions in the case.
The discovery prayed for must be denied. Currier v. Concord Railroad,48 N.H. 321. But
The demurrer must be overruled.