the like description of freight between such stations." We do not see, in this change of language, any alteration of the meaning of so much of the act of 1850 as was applicable to such a case as this. The "joint business connection for the conveyance of freight and passengers," of the act of 1852, does not mean less than the "agency or joint contract" of the act of 1850. The requirement of equality of rates for passengers and freight between the stations of one road and the stations of another with which it has “a joint business connection for the conveyance of freight and passengers," while it does not authorize one corporation to use, that is, to work, the road of another, does, by necessary implication, recognize as lawful such a joint business connection (not amounting to a joint or several use by one corporation of another's road) as the public convenience requires.

For

This provision of the act of 1852, in a condensed form, but without any alteration affecting the sense, was copied in the revisions of 1867 and 1878. Gen. St., c. 149, ss. 1, 2; Comrs.' Rep. on Revision of 1867, c. 150, ss. 1, 2; Gen. Laws, c. 163 ss. 1, 2. thirty-two years a railway corporation has been forbidden, by statute, to work another's road without governmental license. For forty years the legislature have expressly recognized the authority of such corporations, to make joint business connections with each other, in pursuance of which passengers and freight could be carried from any station of one to any station of another, without change of cars, upon a single contract made by each passenger or freightowner and one of the corporations. The distinction is between a corporate carrier, on the one hand, making with passengers and freight-owners contracts of transportation over its own and another's road, and jointly or severally using, that is, working, the other road as well as its own, and such a carrier, on the other hand, making similar contracts which are executed, on the other road, by another carrier, in pursuance of a contract, express or implied, between the two carriers, each working its own road.

The commissioners of the revision of 1867 proposed to strike out of section 8 of the act of 1850 the words "for the use of their roads," and to insert in lieu thereof the substance of the phrase of s. 10, c. 142 of the Rev. St., "for the transportation of freight or passengers, and the conducting of all business connecting therewith on their road." Comrs.' Report. c. 151, s. 10. This amendment, marked by the commissioners as a substitute materially different from the existing law, the legislature rejected. The prohibition of the use of one road by the corporate owner of another road, was retained, Gen. St. c, 150, s. 10, with the other provisions of the act of 1850, as condensed in the act of 1852, in relation to 66 a joint business connection for the conveyance of freight and passengers. Gen. St., c. 149, ss. 1, 2. Here seems to be a very significant legislative act of carefully considered adherence to the distinction

8 A. & E. R. Cas.-36

between a contract for the use of roads, for which a governmental license is necessary, and a joint business connection for which such a license is not required.

The commissioners of revision also proposed another substitute, materially different from the existing law. They proposed another section, which included not only a contract for the use of any railroad, but also a sale, lease and mortgage of any railroad, and made such sale, lease, mortgage and contract for use invalid unless in writing, filed in the office of the secretary of state, and authorized by the legislature. Comrs.' Report, c. 146, s. 2. This substitute the legislature adopted, in Gen. St. c. 145, s. 2; and its adoption, with the retention, in s. 10 of c. 150, of the clause relating to contract for use (which the commissioners had proposed to strike out of that section), gives two provisions, in different chapters, on the subject of contract for use, the second, relating to a contract made by two or more railroad corporations for the use of their roads for a time not longer than five years, which must be approved by the railroad commissioners and the governor and council,-and the first, relating to a contract for the use of any railroad, without a limit of five years or other time, which must be filed in the office of the secretary of state, and authorized by the legislature. What is the full extent of the difference between these provisions, Northern R. R. v. Concord R. R., 50 N. H. 185–194, we need not now inquire, since there is no difference between them that has any bearing on the present case, and it is not claimed that the contract in controversy was authorized in the manner prescribed by either of them.

The legality of a joint business connection without a special license is settled by a decision of this court, made thirteen years ago. In Nashua Lock Co. v. Worcester and Nashua R. R., 4 N. H. 339, a New Hampshire railroad corporation was held liable for goods delivered to it to be carried to the city of New York, and lost by the burning of a steamer on Long Island Sound. Judge Pereley, delivering the opinion, says, pp. 345, 360, 361, 393,— "We have no hesitation in holding that railroads may contract to carry goods and passengers beyond their own lines. They could not answer the main objects of their incorporation without the exercise of this power. They are laid out and established with reference to connections in business with other extended lines of transportation, and the power to contract for transportation over the connected lines is implied in the general grant of corporate authority. On this point the authorities are nearly unanimous. It has been held otherwise in Connecticut by the opinion of three judges against two. . . The connected line transacts business as one joint concern, and the business cannot be transacted otherwise with convenience either to the carriers or the owners of the goods.

The use of steam in carrying goods and pas

sengers has produced a great revolution in the whole business. The amount and importance of it have of late vastly increased, and are every day increasing. The large business between different parts of the country is done, as in this case, by parties who are associated in long continuous lines, receiving one fare through, and dividing it among themselves by mutual agreement. They act together for all practical purposes, so far as their own interests are concerned, as one united and joint association. In managing and controlling the business on their lines, they have all the advantages that could be derived from a legal partnership. They make such an arrangement among themselves as they see fit for sharing the losses, as they do the profits that happen in any part of their route. If, by their arrangement, each party to the connected line is to make good the losses that happen in his part of the route, the associated carriers, and not the owner of the goods, have the means of ascertaining where the losses have happened. And if this cannot be known, there is nothing unreasonable or inconvenient in their sharing the loss as in the case of a legal partnership, in proportion to their respective interests in the whole route. Few things are of greater importance to the whole country than the cheap, convenient and safe transportation of goods between distant points. . . Most of this business is done on connecting lines of railroads and steamboats; and these, by continuous lines, have a practical monopoly of the business on their respective roads. The owner of goods must entrust them to these associated carriers; they cannot be carried in any other way. Not only those who are engaged directly in carrying and sending goods are interested in this subject: all who produce and all who consume are interested that goods should be carried as cheaply, as conveniently, and as safely as possible."

This decision affirmed the authority of railway companies of a continuous line to make what is called in the statute " a business connection," under which passengers and freight owners can contract with one of the companies, and safely pay one of them for transportation over all the roads of the associated companies, and under which the companies can divide among themselves the earnings of the joint business. In R. R. Co. v. Pratt, 22 Wall. 123, 130, the Supreme Court of the United States said they were not aware that the contrary rule prevailed anywhere except in Connectient. In Barter v. Wheeler, 49 N. H. 9, 25-28, this court followed the decision of this point, made in Nashua Lock Co. v. Worcester and Nashua R. R., and held that, in the case of a continuous line formed by several distinct companies, each operating a distinct part of the entire line, but each empowered by the others to contract for freight over the whole route, and to receive payment for the whole distance, the receipts to be divided among the several companies in prescribed proportions, the companies "stand sub

stantially in the position of partners in such through business." The associated carriers of that case formed a joint transportation line from Boston, through Nashua, Concord, Vermont, New York, and various ports of the Western lakes. In any view that can be taken of the present case, it is enough that the doctrine of corporate power, laid down in Nashua Lock Co. v. Worcester and Nashua R. R., is the law of Massachusetts and the federal court, as well as New Hampshire. Najac v. B. and L. R. R. Co., 7 Allen, 329, 333; Hill Mfg. Co. v. B. and L. R. R. Co., 104 Mass. 122, 133; Railway Co. v. McCarthy, 96 U. S. 258, 266.

There is also a doctrine of corporate obligation that has a material bearing upon the business connection that may be formed by the parties to this contract.

Chapter 1113 of Laws of 1851 provided that in all cases where railroads were unable to agree upon terms of connection, or on referees to whom the same might be submitted, either road might apply to the court for the appointment of referees to adjust and determine all matters of connection between such roads. This act was repealed by c. 1666 of Laws of 1855, which provided that every railroad corporation should draw over its road the cars, passengers, and freight brought to it by any other railroad which is authorized to unite with or enter upon and use the same, as well as also all cars, passengers, and freight destined for such railroad, for a reasonable compensation; that no railroad drawing the cars of other roads should be required to allow its road to be used by any other motive power than its own; and that, if the roads could not agree as to the reasonable compensation, either party might apply to the court for the appointment of referees to adjust and determine the rates of compensation for transportation, and all matters of connection between such roads. Chapter 1847 of Laws of 1856 so amended the act of 1855 as to give the benefits of it to connecting railroads, notwithstanding neither of them was authorized by law to unite with or enter upon and use the other. In the revision of 1867, by a change of the statutory language supposed by the commissioners to be material, the right to obtain, by a compulsory reference, an adjustment of the rates and terms of such transportation, and all matters relating to the connection in future, was limited (if the language of s. 1 of c. 150 of the revision is to be taken literally, and is to control the next eight sections of the chapter) to cases in which one railroad is authorized to enter on and use the road of another company. It is not necessary, in this case, to inquire whether the act of 1856 was limited in the revision, because the charter of the Concord Railroad brings that company and the Nashua and Lowell company within even the most narrow construction of the revised law now in force. Gen. St., c. 150, Gen. Laws, c. 164. The charter of the Concord Railroad authorized that corporation to locate and construct its road

beginning at any point within certain limits so as to enter on the Nashua and Lowell Railroad, paying for the right to use the same or any part thereof, and complying with the rules of that road. If the two companies are unable to agree upon the terms of connection, either may apply to the court, upon Gen. Laws, c. 164, s. 3, for the appointment of referees to adjust and determine the rates and terms of transportation on the New Hampshire portion of the Nashua and Lowell road, and all matters relating to the connection of the two roads. And, whatever may be the limitations of such compulsory arbitration between other roads, this judicial power of adjusting and determining all matters relating to the connection of these two roads must be very broad, because it was the intention of the legislature that both the New Hampshire part of the N. and L. road and the Concord road (located and constructed so as to enter on the N. and L.) should be parts of a public road extending from Boston to Concord; and the provision for a compulsory adjustment and determination of all matters relating to the connection of the parts furnishes a means of requiring the parts to be so worked as to give the public many if not all of the practical conveniences of one road, to the extent of New Hampshire jurisdic

tion.

It was not intended that, while the Concord could enter on and use the N. and L. and obtain a compulsory adjustment of all matters relating to the connection of the roads, the N. and L. should have no other rights of connection with the Concord than such as the Concord might grant. An adjustment of all matters relating to their connection would require a consideration of public rights and public convenience, and the duties of both roads to the public. It was not the intention of the legislature, that, while the N. and L. might be required to draw over its road the cars of the Concord, the latter could not be required to draw over its road the cars of the former. It was the intention that the Concord might obtain, by compulsory arbitration, an adjustment of the connection of the' two roads upon such grounds of convenience, efficiency and economy as would promote the interest of the public, in whose service the corporations are employed, with due regard for the interests of both corporations, and in strict conformity to the limitations of their powers. Such an adjustment might require much reciprocity and unity of action in the two corporations, each working its own road, to enable them to render the transportation service which is due to the public, and which New Hampshire authority would, of course, endeavor so to control for the public accommodation as to give the public substantially such a service as would be received from a single corporation, or a partnership of corporations, working the road between Boston and Concord. Nothing less than such a service can amount to the reasonably convenient use of that highway to which the public are entitled.