Upon the filing of the foregoing opinion, the defendants moved for further hearing as to the Sullivan County Railroad, and additional facts were by agreement presented for consideration. It now appears that all the stock of the Sullivan County Railroad is owned by the Vermont Valley Railroad, a Vermont corporation; that in 1880 the Vermont Valley Railroad, as owners of the Sullivan County, entered into a contract for its operation with the Connecticut River Railroad, a Massachusetts corporation; that under the lease of the Connecticut River to the Boston and Maine, the Boston and Maine assumed the contract of the Connecticut River with the Vermont Valley, and it is claimed is now operating the Sullivan County thereunder without reference to the laws of 1883, 1889, or the provisions of the Public Statutes empowering one railroad to lease another. By the consolidation of the Connecticut River with the Ashuelot under the act of 1889 (c. 201), the former corporation or the new corporation became subject to the laws of New Hampshire as to so much of its road as lay in this state. But the right under which the Boston and Maine, by virtue of its lease of the Connecticut River, claims to operate the Sullivan County is a right of the Connecticut River antedating any subjection of that corporation to the laws of New Hampshire. That right, if there is any such right, rests on the power of the owner of all the stock of a railroad to make a contract with another for the execution of its franchise.
Whether this contract made in 1880 is of any validity or not, it is clear it is not a contract of lease or union made under the laws of 1883, 1889, or the Public Statutes of 1891. There is no claim that the contract was validated by this legislation. Upon the questions presented for decision by the agreed case, it is immaterial whether the contract of 1880 is legal or illegal. The state is now insisting upon the enforcement of the restrictions of the legislation of 1883, 1889, and 1891, upon roads leased or united under it. To make out. the state's case, it must appear that the lease or union was effected in the execution of powers or in the enjoyment of privileges thereby conferred. If the contract of 1880 is one the Sullivan County had power to make, no rights acquired under it are affected by the later legislation. If it is contrary to law, the operation of the road by the Boston and Maine is without legal warrant and equally without the terms of the enabling acts. Under chapter 156, Public Statutes, the Sullivan County can lease its railroad to the Boston and Maine. It has not done so. *Page 160
Claiming nothing under the statute, the defendants are not affected by its restrictions. Whether what is being done is in violation of law, is a question for investigation when properly presented in this or some other proceeding, should the attorney-general see fit to interfere. As the facts are now stated, the Sullivan County Railroad is not within the restrictions of section 42, chapter 156, Public Statutes. The opinion heretofore filed is modified to that extent.
Case discharged.
All concurred.