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accomplish the main object, the continuous transit without break or interruption.

The lessor company of a given line has neither capacity nor power to do this. It has, by a lease or contract of a permanent nature, divested itself of any power to furnish such transportation. The franchise to maintain and operate a railroad over the leased line passed, with the tangible property, to the lessee company. It alone can furnish the desired transportation.

The franchise or power to consolidate must exist in the corporation having such lines as may be united, so as to furnish that continuity of transportation which it was the purpose of the statute to provide for. A lessor company could not do this. A lessee company, having absolute control, during the life of the lessor company, can fully accomplish this object, and I see no reason why it may not consolidate when this continuity of transit will be provided, which was the primary object of the statute.

LONGWORTH, J.-I concur with my brethren that judgment of ouster should be rendered, but not upon the ground set forth in the first paragraph of the syllabus; and I agree with the opinion of Judge Johnson. I only desire to add one consideration to what has been said by him.

In construing a statute it is always well to consider the object to be attained by legislation. In this case it is evident that the object (or at least one object) was to enable trains of cars to pass continuously, without break or interruption, over the lines of road of the companies desiring to become consolidated. As the lessee companies actually operate the roads, of which they alone have possession and control, they must certainly be the owners of such lines within the contemplation of section 3379. A consolidation of lessor companies could accomplish no conceivable practical result, seeing that they do not operate the roads, and never can, at least while the leases are in force. This drives me to the conclusion that the "lines of road of any railroad companies" mentioned in the statute, refer to lines held under perpetual lease, where the lessee has sole possession and control of their operation, as well as to lines held and owned by title in fee simple. I concede that the title must exist in perpetuity, since the consolidated corporation will, in contemplation of law, endure forever.

This being true, it follows that the "lines of road" in question extend from Cincinnati to Cleveland and Toledo, respectively; that they are competing, and in their general features parallel; and their consolidation is open to the objections so well announced and discussed in the opinion of the Chief Justice and of Judge Johnson.

RAILWAY Co.

V.

JEWETT.

(37 Ohio State Reps. 649. January Term, 1882.)

A railroad company may be sued in any county through or into which its road passes, without regard to the nature of the cause of action.

The appointment of a receiver to take from the defendant the possession of his property, cannot be lawfully made without notice, unless the delay required to give such notice will result in irreparable loss.

In an action to prevent the consolidation of railroad companies, the election of directors for the new company, at a meeting of the stockholders held under section 3383 of the Revised Statutes, will not justify such an appointment against either of the companies, on the ground that part of the stockholders participating in the meeting have been inhibited from doing so by injunction.

ERROR to the Court of Common Pleas of Franklin county.

The original petition was filed in the court of common pleas of Franklin county, on October 19, 1881, by Hugh J. Jewett and R. Suydam Grant, who sue in their own behalf as stockholders in the Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co., and in behalf of other stockholders who might come in and contribute to the expenses of the action. The defendants are the said railway company, the Cincinnati, Hamilton and Dayton R. R. Co., J. H. Devereux, George H. Russell, F. H. Short and Stevenson Burke.

The petition is founded upon the attempted consolidation of the two companies named, and sets out the steps taken to effect such consolidation. The material facts are found stated in the case of State ex rel. Attorney-General v. Vanderbilt, decided at this term, ante.

The case last named was instituted after the bringing of this action, and it was therein adjudged that the attempted consolidation of said corporations was unauthorized and invalid.

The object of the petition in this case was to prevent the election of a board of directors of the consolidated company, known as the Ohio Ry. Co., at a meeting of the stockholders to be held at Cleveland, on October 20, 1881. The petition avers that Devereux is a stockholder, director and the president of both companies, and that said Burke is vice-president of the first-named company, that said Russell is the secretary of the first-named company, and said Short is secretary of the last-named company.

The petition also contains the following averment: "That not only is the said pretended consolidation illegal by reason of the matters and things herein before set forth, but also the interests of these plaintiffs, as stockholders aforesaid in the said defendant,

the Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co., will be greatly prejudiced and irreparably injured by reason of the furthering and completing of said pretended consolidation. That under the said agreement of consolidation, it is intended to consolidate or unite the two corporations defendant into one pretended corporation, with a single management of the said corporations, to keep but one set of books of the earnings of the two lines of railway, and thereby to confuse the earnings and expenses, respectively, of the said corporations defendant, and to make the property and earnings of each of the said corporations liable for the debts and obligations of the other. That the debts and obligations of the defendant, the Cincinnati, Hamilton and Dayton R. R. Co., are actually much greater than those of the Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co., and that it will be greatly to the damage of these plaintiffs to have the stock of the two corporations consolidated, and the earnings of the properties of the respective corporations amalgamated and confused." And asks that the said corporations defendant, and their respective directors, stockholders and officers, be forever enjoined and restrained from doing any act toward the completion of the said pretended consolidation, or any consolidation of the said corporations defendant, or for the election of any board of directors, of the said pretended Ohio Ry. Co., and from surrendering the possession of the railways and properties, books, papers and records of the said corporations, or either of them, to the said alleged Ohio Ry. Co., or to any board of directors or officers pretending or claiming to represent

the same.

And the defendants, J. H. Devereux, Stevenson Burke, George H. Russell, and F. H. Short, be and each of the same be forever enjoined and restrained from in any way furthering, aiding, promoting, or participating in the said meetings, called as aforesaid. An ex parte temporary injunction was allowed, as prayed for, at the time of filing the petition. And on the same day service was made on Cleveland, Columbus, Cincinnati, and Indianapolis Railway Company, at Franklin county, and on the other defendants on the morning of the 20th of October in Cuyahoga county, before the meeting for the election of directors.

On October 22, 1881, the plaintiffs, by leave of the court, filed a supplemental petition, in which it was stated in substance that notwithstanding the injunction and service thereof, the meeting for the election of directors of the Ohio Railway Company was held at the time and place appointed for that purpose in which the said Devereux, Burke, Russell, and Short participated. That all the stockholders assembled at said meeting were notified of the filing of said petition and the allowance of said injunction before proceeding to such election. That directors were elected at such

meeting for the Ohio Railway Company whose names are set forth and who are asked to be made defendants.

It is also averred: "That said pretended directors and officers of said pretended new corporation intend to, and unless stopped by the effective intervention of this court, will take control and management of the property, franchises, and assets, of every kind, of the two railroad companies, defendants in this case, in the name of said pretended new corporation, and will abandon and cause to be dissolved the two railway companies, defendants in this case. Plaintiffs say that by reason of facts stated in the original petition, the said two railroad companies, defendants, have not been consolidated, nor can they be; that the meeting stated in the original petition, wherein their stockholders voted to ratify the agreement for consolidation, and the votes there given, as well as the votes cast at the meeting on October 20, 1881, at Cleveland, herein before described, were without legal validity or effect, either to dissolve the old companies or to create a new one."

The appointment of a receiver was prayed for, to take possession and control of the Cleveland, Columbus, Cincinnati, and Indianapolis Railway Company's road, and of all other roads leased or held by it, and of all of its property of every kind and nature whatsoever, and to hold and operate said roads under the direction of the court until further ordered; and for such orders of injunction as would enable the receiver to fulfil the duties of his appointment.

At the time of the filing of the supplemental petition an appointment ex parte of a receiver was made as prayed for, and such orders entered as would enable him to take control of all the property and rights of the said company, and to fully perform the duties of his appointment.

The receiver gave bond, and was duly qualified as required by the court.

On application to this court leave was granted to the plaintiffs in error to file the present petition in error to reverse the order appointing the receiver, and all orders founded upon and in execution of said appointment; and the execution of the duties of said appointment, and of said orders, were stayed until the petition in error could be heard.

Harrison, Olds & Marsh, for plaintiff in error.

The court had no jurisdiction of the persons named as defendants in either the original or supplemental petition. The action was not "rightly brought" in the county of Franklin, according to the provisions of ch. 5, div. 2, tit. I. Rev. St. It was one which "must be brought in the county in which a defendant resides or may be summoned." Section 5031. None of the defendants reside in the county of Franklin, and none of them could be summoned therein. True, two summonses were issued against the Cleveland, Columbus, Cincinnati and Indianapolis Railway Com

pany, directed to the sheriff of Franklin county; one of which was returned served upon "a regular freight agent," and the other upon "an agent" of the company. But if, when the action was commenced, said company was still a railroad corporation for all purposes (which we controvert), and its road passed into Franklin county, and it had "a regular freight agent" therein, upon whom summons was served, these facts did not entitle the plaintiffs to bring their action in that county, for two reasons: 1. Section 5026 provides that "an action other than one of those mentioned in the first four sections of this chapter [of which, the action below was not one], against a corporation created under the laws of this State, may be brought in the county in which such corporation is situate, or has or had its principal office or place of business." Section 5027 qualifies the foregoing general provision of section 5026, to a certain extent only; that is to say, it authorizes an action to be brought against a railroad company "in any county through or into which such road passes," only when the action is "for an injury to the persons or property upon the road or line, or upon a liability as carrier." This qualification was intended for the convenience and protection of persons in whose favor rights of action accrue against a railroad company in operating its road and carrying on its business. It certainly was not intended to authorize an action to be brought jointly against natural persons and such company, on other causes of action than those enumerated, in any other county than that in which such other person "resides or may be summoned" (section 5031), or in the county where the company resides, and service can be made on it under section 5026. Sections 5027 and 5031 must be construed together. When an action is brought against two or more defendants, and neither of them resides in the county in which the action is brought, and the summons cannot be legally served upon either of them in that county, the court does not acquire jurisdiction over either of the defendants. The court had no jurisdiction to make the order appointing a receiver, until all persons who would be directly and legally affected by it were before the court. But the order in question was made before the persons who were made defendants to the supplemental petition were served with process, and even before process was issued against them. As to them at least, the action was not then actually pending. Robinson v. Orr, 16 Ohio St. 284, 288; Bennett v. Williams, 5 Ohio, 461.

The order in question is void also for the reason that no notice was given to the defendants, or either of them, that an application would be made for the appointment of a receiver. The order was made before any of the parties were required to appear in an action, and before any process at all had been issued against some of them. This precise question has not been, so far as we are aware, decided by this court. But the court has recognized and

8 A. & E. R. Cas.-45

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