Page:Harvard Law Review Volume 12.djvu/511

491 RAILWAY CONSOLIDATION. 49I delivery in nothing except that the consideration for the transfer is paid semi-annually instead of in a sum total. The true character of the instrument, therefore, if the parties choose so to treat it, is that of a sale; and it seems to us a perversion of the meaning of words, and an evasion of law, to give it any other interpretation." In passing upon it in the character of a sale, the court says: — " But it is urged by the appellees that there is authority of law for making the contract in question, if not in express terms, yet by fair in- terpretation, whether it is called a lease or a sale ; and they cite the Act of February 23, 1853. That act is ' to authorize railroad companies to consolidate their stock with the stock of railroad companies in this or in an adjoining State, and to connect their roads with the roads of said companies,* etc. The title nowhere mentioned a lease or a sale. In- deed, the words ' to connect their roads with the roads of said com- panies ' would seem to exclude such a conclusion. To connect one road with another does not fairly mean to lease it or to sell it to another." This case appears to establish in Indiana the present rule that domestic railways may not lease or sell their roads. " We look in vain in this latest decision of the State for an assertion of the proposition that, by the laws of that State or by the decisions of its courts, there exists any law by which one railroad company can, 'by lease or by any other contract, make an absolute surrender of its road and its franchises to another. And yet that was the ques- tion under discussion, and because the lease in that case continued a clause of perpetual renewal, and in effect amounted to a sale, the court held it ultra vires "^ In the recent Vandalia case^ this construction of the Indiana statute was reaffirmed. It is true that in both of the cases last referred to the question involved concerned the right of an Indiana railway to become the lessee of the property of another corporation, but in the opinion of the court the general effect of the Indiana statute was necessarily considered, and the statements quoted hold- ing that the power granted to railroad companies by this statute to consolidate with other companies and to connect with other roads, does not carry with it the power to sell their property or franchises, are in accordance with the weight of authority upon the subject, especially in the case of interstate railways where a sale would turn 1 Pennsylvania Co. v. St. Louis, etc. Co., it8 U. S. 290, 313, 630, 634. 64
 * St. Louis Rd. V. Terra Haute Rd., 145 U. S. 393, 404-405.