Concurring Opinion.
Howard, J.The chief question discussed by counsel in this case, and that on which it seems to have been taken for granted, both on the appeal and on the trial, that the case must turn, is the right of the Wabash *240Railroad Company to lease, and thus absorb the appellant, a competing railroad company. It does not appear from the record, however, even if this were the' issue on which the decision must turn, that the question has been properly brought before the court. The parties may know, and counsel may take it for granted, that all the world, including this court, must know that the two roads are competing lines. But neither in the pleadings, nor in the evidence, is the question so presented that we may take judicial notice that the lines are competing; nor was this the theory on which the case was tried, or the judgment rendered. If they are, in fact, competing, such fact should be shown in the record.
It may be very true that if the question were properly presented, and if it appeared that the lines were competing, the judgment should be affirmed. Eor it may well be doubted whether a railroad company, by purchase, foreclosure, consolidation, lease, or other contrivance, can absorb a rival line of road, so as to destroy that competition which public policy requires should be retained and encouraged whenever possible. The consolidation which public policy will favor is that of bona fide feeders and extensions with the main lines, but not of rival or competing lines.
The question, however, on which the decision on this appeal has turned, and that on which it would seem it must turn, is the insufficiency of the service or notice on which it was attempted to bring the appellant into court. The appellant is a resident corporation, and cannot be served by summons, or other notice, to its officers outside the State, or by publication, unless the proper showing is first made by affidavit; section 320, R. S. 1894 (section 318, R. S. 1881); or shall be shown by sheriff’s i’eturn, as provided in the act approved *241December 21, 1858, 2 • G-av. and H. 63; 2 Davis R. S. p. 49.
Filed January 9, 1896.Here there was no such showing of the facts as might have made good the service attempted in this case. For this reason I must concur in the decision of the court.