railroad coaches will not mislead anyone, or atone for the wrong this day done.

The result of the whole matter is that while this court has frequently adjudged, and at the present term has recognized the doctrine, that a state cannot, consistently with the Constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a state may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a "partition," when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a "partition," and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a movable one, shall be taken to their consultation room, and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the "partition' used in the court room happens to be stationary, provision could be made for screens 563] with openings through *which jurors of the two races could confer as to their verdict

have disappeared from our country, but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the *people of the United States, [564 for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the Constitution or laws of any state to the contrary notwithstanding.

For the reasons stated, I am constrained to withhold my assent from the opinion and judg ment of the majority.

UNION PACIFIC RAILWAY COMPANY and OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY, Appts.,

v.

CHICAGO, ROCK ISLAND, & PACIFIC RAILWAY COMPANY.

UNION PACIFIC RAILWAY COMPANY, Appt.,

of the United States of a particular race, would be held to be consistent with the Consitution.

I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them are wholly inapplicable, because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing here, obliterated the race line from our systems of governments, national and state, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.

I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery as an institution tolerated by law would, it is true,

v.

RAILWAY COMPANY.

(See S. C. Reporter's ed. 564-611.)

Contract between railroad companies,—construction of contract-expiration of charter -running trains for agreed compensationratification--stockholders' right to manage corporate affairs-government directorsspecific performance.

1. A contract by a railroad company to let another company run trains over its tracks in a city and vicinity, with full, equal, and joint possession and use of the tracks, but subject to the orders of the officers of the former company, being really an agreement for trackage rights with compensation on a mileage or wheelage basis, although it is called a lease and the so-called lessee is to baul its trains with its own engines,-is not ultra vires because not expressly authorized by statute.

2.

The power of the Union Pacific Railway Company to grant to the Chicago, Rock Island, & Pacific Railway Company the right to run trains with engines over the bridge between Council Bluffs and Omaha extends to the use of

NOTE.-A8 to what acts and contracts of a corporation are ultra vires; contracts in violation of statute or public policy: executed contracts; instances; estoppel or ratification of transactions ultra vires, see note to Central Transp. Co. v. Pullman's Palace Car Co. 35: 55.

refused, see notes to Hepburn v. Dunlop, 4: 65, ColAs to when specific performance decreed and when son v. Thompson, 4: 253, and Brashier v. Gratz 5: 322.

the approaches and terminal facilities in those cities, with a track about 4 miles long to South Omaha, where the tracks of the companies connect.

3. A contract between railroads, extending bevond the time when the charter of one company will expire by its terms, is not for that reason invalid, when it is drawn carefully in view of that fact, binding the parties to take such steps as may be necessary to continue it in force. 4. A restriction on the power of the Union Pacift Railway Company to operate any line of road other than that which Congress had specifically authorized it to construct does not prevent it

from making a valid contract to run trains for an agreed compensation by mileage for 45 miles over

another railroad.

4. Ratification of a contract of a corporation by a board of directors appears without any affirmative action on their part, when the execution of the contract is entered upon with full knowledge

of the directors.

The ultimate determination of the management of corporate affairs rests with the stockholders when by the charter the powers of the corporation are vested in them or when it is silent on that question and does not commit the exclusive control to the directors.

7. A provision for government directors of the Pacific Railroad Company does not take that corporation out of the general rule giving stockholders final control of corporate affairs in the absence of a charter limitation.

8. Specific performance may be decreed of a contract by one railroad company to give to another the right to run trains over the road of the former subject to the orders of its officers.

APPEALS from decrees of the United States Circuit Court of Appeals for the Eighth Circuit affirming the decrees of the United States Circuit Court for the District of Nebraska in favor of complainant, the Chicago, Rock Island, & Pacific Railway Company against the Union Pacific Railway Company et al., defendants, and in favor of the complainant, the Chicago, Milwaukee. & St. Paul Railway Company against the Union Pacific Railway Company, defendant, for the specitic performance of certain contracts. Af. firmed.

Statement by Mr. Chief Justice Fuller: These were petitions in equity filed by the Chicago, Rock Island, & Pacific Railway Company against the Union Pacific Railway Company and the Omaha & Republican Valley Railway Company; and by the Chi cago, Milwaukee, & St. Paul Railway Company against the Union Pacific Railway Company in the district court of Douglas county, Nebraska, January 2, 1891, to compel the specific performance of two contracts dated May 1, 1890, and April 30, 1890, respectively, and removed on petition of the Union Pacific Railway Company to the United States circuit court for the district of Nebraska, where they were heard by Mr. Justice Brewer, and decrees rendered in favor of complainants. 47 Fed. Rep. 15. From these decrees defendants appealed to the United States circuit court of appeals for the eighth circuit, by which they were

affirmed. 10 U. S. App. 98. Thereupon these appeals were prosecuted.

To the contract of May 1, 1890, the Union Pacific Railway Company, the Omaha & Republican Valley Railway Company and the Sa. · lina & Southwestern Railway Company *were parties on one side and the Chi- [567 cago, Rock Island, & Pacific Railway Company and the Chicago, Kansas, & Nebraska Railway Company on the other; and the contract of April 30 was between the Union Pacific Railway Company and the Chicago, Milwaukee, & St. Paul Railway Company.

The Union Pacific Railway Company controlled and operated more than 5,000 miles of railroad, and, among others, a main line extending from Council Bluffs, Iowa, by way of Omaha & Valley Station, Nebraska, to Ogden in Utah territory, a distance of about 11,000 miles; a main line from Kansas City, Missouri, by way of Topeka and Salina, Kansas, to Denver, Colorado; the Republican Valley railroad extending from Valley Station, Nebraska, by way of Lincoln and Beatrice, in that state, to Manhattan, Kansas; the Salina railroad extending from Salina to McPherson, in Kansas; and a railroad extending from Hutchinson, in Kansas, to the southern border of that state; and other auxiliary roads.

The. Rock Island Company owned and operated a line of railway extending from Chicago by way of Davenport to Council Bluffs, Iowa, and from Davenport to St. Joseph, Missouri. As the owner of the latter line and lessee of the Chicago, Kansas, & Nebraska Railway Company and other corline of railway from Chicago by way of Davenporations, it controlled and operated a through port, St. Joseph, and Beatrice, Nebraska, to

Colorado Springs and Denver, Colorado; and a line from St. Joseph, Missouri, by way of Horton, Topeka, and Hutchinson to Liberal, Kansas, and other lines, amounting in the ag gregate to more than 3,000 miles of railway.

The Union Pacific railroad owned nearly all of the stock and bonds, elected the directors, and built, controlled, and operated the railroads of the Republican Valley and Salina Companies, and the Rock Island Company owned and operated the roads of the Kansas Company under a lease for nine hundred and ninetynine years, so that the Pacific Company and the Rock Island Company were practically the real parties in interest to the contract of May 1.

*The St. Paul Company was operating[568 more than 6,000 miles of railroad, and one of its lines extended from Chicago to Council Bluffs, Iowa.

The sketch on the opposite page roughly indicates the domain of the contracts.

*Early in 1890 the Rock Island Compa-[569 ny determined to connect its lines from Chicago to Council Bluffs with its southerly line to Colorado Springs by constructing a bridge across the Missouri river at Council Bluffs and a railroad from that terminus, by way of Omaha and South Omaha and Lincoln to Beatrice, Nebraska, thereby shortening its line from Chicago to Denver and Colorado Springs; and the St. Paul Company joined in the undertaking in order to extend its line from Council Bluffs on to Omaha and South Omaha. Act ing in concert the two companies caused a cor

poration to be created under the laws of the state of Iowa by the name and style of the Nebraska Central Railway Company, with power to build a bridge across the river at Omaha and one or more lines from that city west. Congress granted to this corporation the necessary franchise for the bridge. 23 Stat. at L. 43. Preliminary surveys and estimates were made which showed that the entire cost of the bridge and tracks to South Omaha would be about two and one half million dollars. In February, 1890, the presidents of the St. Paul and Rock Island companies visited New York for the purpose of arranging for the construction of the proposed work, when the Pacific Company requested them to suspend operations, and proposed to make a trackage arrangement with them by which they could use the bridge and tracks of the Pacific Company between Council Bluffs and South Omaha for their terminal facilities in Omaha and South Omaha, and the continuous line desired by the Rock Island Company could be completed. By direction of the president and at least two directors of the Pacific Company, its chief of construction and two of its directors obtained a meeting with the presidents of the St. Paul and Rock Island companies and agreed with them upon the terms of the contracts in question. From the memoranda then made by the chief of construction of the Pacific Company the contracts were subsequently drawn. They were examined and approved by the general solicitor of the company at Omaha. The executive committee of the board of directors of the Pacific Company at a meeting on April 22, 1890, at which six of the

seven members of that company *were [570 present (five in person and one by proxy) considered and unanimously voted to approve of the contracts and authorized the president to execute them. The custom of the secretary had been not to specify in the notice of the meetings of the executive committee the subjects to be considered, and the notice of this meeting did not state that the subject-matter of these contracts would be considered. The member of the executive committee who was absent and not represented was a government director.

At the annual meeting of the stockholders of the company held April 30, 1890, at which more than two thirds of the stock was represented, these contracts and the action of the executive committee thereon were considered and resolutions passed by an unanimous vote of that stock, approving and ratifying the contracts and the action of the committee authorizing their execution. The call of the annual meeting did not state that the subject-matter of these contracts would be considered, but that certain other subjects would be, and that the meeting was for the selection of directors for the coming year and the transaction of any other business which might legally come before the meeting. The record of the meeting of the executive committee April 22, 1890, reads thus:

The President submitted Vice-President Holcomb's letter No. 1,139, dated April 18, 1890, enclosing an agreement between this company and the Chicago, Milwaukee. & St. Paul Railway Company, and an agreement between this company, the Omaha & Republi