NINTH. It further appears that on the next day or day after, the Chicago and North Western Railway Company, held their annual meeting at Chicago, and elected the following persons directors of said company, to-wit:

1. John B. Turner; 2. William H. Ferry; 3. James D. Fish; 7. Thomas D. Robertson; 5. William B. Scott; 6. William R. Sands; 7. James H. Elwell, William B. Ogden, Perry H. Smith, J. J. R. Pease, A. L. Pritchard, M. C. Darling, George M. Bartholomew, Samuel J. Tilden, William A. Booth, H. H. Boody, and Sewell Holbrook,

TENTH. That these persons, by the fraud and connivance of the Galena and Ohicago Union Railroad Company directors, of which they formed a large part, immediately took possession of the Galena and Chicago Union Railroad, and all of its branches, and all of its money, and all of its property, and have been in full and complete possession of the same, and receiving all of the tolls and revenues up to the present time.

ELEVENTH. It further appears, that no notice whatever of any character or kind was ever given of any intention on the part of the directors or anybody else; that the road was to be sold out, and that the complainant knew nothing whatever about it until long after the sale had been made.

TWELFTH. The bill charges, that at the time of the sale and consolidation, there were many thousand dollars in the treasury of the Galena and Chicago Union Railroad Company, which the Chicago and North Western Railway Company took and appropriated to their own use, besides a great deal of other property; and that since that time, the funds of the road have been, and are, constantly being diverted and appropriated to other purposes than what is provided in the charter of the Galena and Chicago Union Railroad Company.

THIRTEENTH. That the Peninsular Railroad Company of Michigan, which is referred to in the bill of sale and articles of agree

ment, is more than four hundred miles distant from the nearest point of the Galena and Chicago Union Railroad Company-is 120 miles north of the northern terminus of the Chicago and North Western Railway Company, and can only be reached by a journey overland or a sea voyage; that the Chicago and North Western Railway Company immediately after taking possession of the Galena and Chicago Union Railroad Company, issued several millions of dollars worth of stock; that they have taken up about eight miles of the track of the Galena and Chicago Union Railroad; that they have taken and carried away a great number of the cars and locomotives, and threaten to take up a number of miles more of track of the Galena and Chicago Union Railroad, and to put a mortgage on the entire property.

FOURTEENTH. The complainant further shows, that he is the owner of a number of bonds of the Galena and Chicago Union Railroad Company, in and by which it is expressly provided, that the revenues of the road shall be faithfully applied to the payment of the interest as principal.

FIFTEENTH. That he is the trustee for the first mortgage bondholders, and is bound by said trust deed, and by law, to see that the property shall suffer no waste or diminution; that the railroad is rapidly going to decay, and is being constantly despoiled, and its property taken and carried away, and its revenues appropriated for the benefit of the Chicago and North Western Railway Company.

SIXTEENTH. That the bill further shows the complainant is a shareholder of the Galena and Chicago Union Railroad Company, and has been for many years; that he has been identified with it from the first organization, and that as such shareholder, he has rights which he claims have been trampled upon and entirely ignored; that by the charter he is entitled to his proportionate share of all the earnings and all of the property of said railroad, and that by the sale and consolidation

he has been and is entirely deprived of all his rights as a stockholder in the Galena and Chicago Union Railroad Company. That the Chicago and North Western Railway Company is in debt many millions of dollars, and that if the stockholders of the Galena and Chicago Union Railroad Company are to be saddled with all the debts and liabilities of the Chicago and North Western Railway Company, and all of its consolidated railroads, that his stock will be utterly worthless.

SEVENTEENTH. That the directors were trustees for all the stockholders, and when they accepted the trust, they were bound to fulfill their duties as such trustees in good faith, and that neither they or the stockholders acting separately or together, had any right, power or authority, to sell out the entire property, for which they had become trustees. That the sale was in law a fraud, and was made by themselves to themselves, and was an act utterly inconsistent with their duties as trustees.

EIGHTEENTH. That any such sale is a violation of the implied contract, which, as a stockholder, he entered into with the corporation when he became a member, and is void both by the constitution of the State of Illinois, and of the United States.

These are the main and substantial points in the case.

NINETEENTH. The details of the transaction are set forth at length in the bill of complaint, and in the evidence, and will be referred to in other parts of this brief. The complainant claims that as he has never acquiesced in any way in the pretended sale and consolidation, that the consolidation changed the entire character of the original enterprise, and that it is, so far as he is concerned, utterly void, and was unauthorized by the charter or by any law of the State of Illinois, or of the United States, and the whole thing should be set aside, and that the companies should not be allowed to fight him by using his money and others similarly situated to him, but that an injunction should be granted and a receiver appointed.

PRELIMINARY.

The sudden and complete extinction of one of the oldest and most successful railroad corporations in this country without a word of warning, has no precedent.

Its

A bare statement of the case stamps it as a coup d'etat. very success contributed to its destruction. It never assumed a position that it could not sustain, and its generous rivalry caused it to be unsuspecting, and made it an easy victim. It seemed at first like a trick. It lacks the sanction of law, and if permitted to stand, may become a most dangerous monopoly. The way and manner in which it was accomplished, does not excite our highest admiration. It was done without notice to any body of any character or kind. It was hurried through with most indecent haste, and involves in it principles and practices which we do not believe are adapted to the simple habits of a wide-spread prairie country.

To say nothing of the disregard of private rights, we do not think that it can be successfully defended, on grounds of public policy, or the good of the State. Until the legality of this transaction is settled by an authoritative adjudication, it puts an end to all investments in railroad corporations in this State.

To insure confidence in any enterprise of a financial character, everything like fraud or deceit must be excluded. The man who contributes his money to aid in building a railroad from Chicago to Galena, would not ordinarily suppose that he was liable to be transported to enterprises "beyond seas or across distant States. The case at bar takes a wide range; it is not confined to any territorial limits. He who drew the charter of the Galena and Chicago Union Railroad Company, and fixed its termini "from the town of "Galena in the county of Jo. Daviess, to such point at the town "of Chicago as shall be determined after a survey shall be made "of the route, to be the most eligible, proper and direct and con"venient therefor," would now require something besides a chart and to guide him to its "consolidated" end.

compass

Rufus Choate's definition of the boundary line between Rhode Island and Massachusetts, which "started at a bush and extended "from thence to a blue jay, from thence to a hive of bees in "swarming time, and from thence to three hundred foxes with "fire brands on their tails," is the soberest description which can "possibly be given of the present "consolidated" condition of the Chicago and North Western Railway Company and the Galena and Chicago Union Railroad Company in their collected ramifications over the country from the Mississippi River to the Upper Peninsula of Michigan.

To call such a scatteration "consolidation" would seem at first to be an entire misnomer, and we should so regard it, if we were not gravely informed that this arrangement betokens the highest evidence of genius, and that this gigantic project comes clearly within the purview of our venerable magna charta. We do not intend to state this case any stronger than the facts themselves will allow, but as our rights are to be determined by the law itself, we are willing to give to human ingenuity every possible advantage that the circumstances of the case may require, and when it has exhausted itself in endeavors to convince the mind that this transaction is reconcilable with the provisions of the charter itself, we may still be inclined to exercise our credulity as to the legality of embracing within its grasp matters so foreign to the original undertaking.

By law a corporation is not self-adjusting. It has no expansive qualities whatever. It is a mere creature of the statute, and in order to determine whether we are bound by the acts of those who have chosen to embark the Galena and Chicago Union Railroad Company in most of the railroad enterprises in esse and in posse between Chicago and the shores of Lake Superior, we propose to examine briefly,

1. The character of this corporation.

2. What powers are granted and what implied in the charter or act of incorporation.