did not provide the said locomotive with the said, nor any proper nor adequate appliances." W. B. Levin, the only witness called by the plaintiff upon this question, testified that he could not say that the engines were improperly used; and all the defendant's witnesses testified that the engines were run in the usual manner and in a proper manner, and that there was nothing to cause them to run the engines improperly, as they were running light trains. Mr. Levin asked to make this statement in explanation: "I would like to say in explanation of my answer, that the Pennsylvania R. is very liberal, and allows outside people like myself to have all the information of what they are doing. As regards the general management of a railroad, they stand second to none in this country; but there are certain appliances that they refuse to adopt which would modify very materially the amount of smoke that is emitted from their locomotives, and which can be had for the paying for it; but, as they are patented, they refuse to buy a bonus to use that apparatus until the time has expired, when they take and use it, and their present locomotives are now using apparatus that were patented for years, and they never used it; but when the patents ran out they adopted them, and they are in general use on their road. To this defendant objected, and, objection being overruled, makes it his sixth assignment of error, as follows: "The learned court erred in permitting W. B. Levin, a witness for plaintiff, to testify as to his opinion as to the way the locomotives were run, by reading to him the testimony of two witnesses, neither of whom had charge of the locomotive, and both of whom were three-quarters of a mile away, as appears by the bill of exceptions." Defendant proved by a number of practical railroad men that the spark-arrester used by it was one of the best and surest known, and one most commonly in use. Verdict and judgment for plaintiff. Defendant brings error.

Gavin W. Hart and David W. Sellers for plaintiff in error. William W. Wiltbank for defendant in error.

GREEN, J.-We are of opinion that there was no evidence of negligence, in this case, on the part of the defendant, but we cannot reverse for that reason, because the court was not asked to give a binding instruction to the jury on the whole testimony, and it was not error to omit to do what they were not asked to do. Under the sixth assignment, however, evidence was admitted which, in our opinion, was entirely incompetent, and on that ground we reverse the judgment. We refer to that part of the testimony of W. B. Levin, which was offered and admitted under exception as an explanation of his previous answer. After it was all in, the defendant's counsel moved to strike out the objectionable matter, but the court refused to do so; to which defendant excepted. The substance of the testimony thus admitted was that the defendant

was in the habit of refusing to adopt certain appliances to modify the discharge of smoke from locomotives, which could be had by paying for them; that, because these appliances were patented, the defendant refused to pay a bonus for their use, but when the patents expired they would adopt them into general use. We are quite at a loss to understand how this evidence could explain anything in the previous answer of the witness, or how it could throw any light upon the question whether the spark-arrester in use upon the engine which caused the fire in this case was up to the standard of such spark arresters as the defendant was bound to use. The only effect of the testimony that is apparent was to create, or tend to create, a prejudice against the defendant, and that purpose was clearly illegitimate. The other assignments are not sustained. Judgment reversed, and new venire awarded.

Sufficiency of Spark Arresters.-See Moxley v. Canada Atlantic R. Co., and note, ante p. 304.

STATE ex rel. LEESE, Atty. Gen.,

v.

ATCHISON AND NEBRASKA R. Co.

(Advance Case, Nebraska. April 25, 1888.)

In a proceeding by quo warranto against a corporation to forfeit its franchises and oust it from the same for misuser thereof, the corporation is the only necessary party defendant. It case of forfeiture the court will take the necessary steps to protect the rights of other parties in the premises.

Section 89, c. 16, Comp. St., authorizes the consolidation of two lines of railway only in cases where the two roads when so consolidated will form a continuous line, without break of gauge or interruption.

Section 94, c. 16, Comp. St., authorizes the leasing of a railroad constructed by another company only in cases where the road of the lessee and of the company making the lease will form a continuous line.

The Atchison & Nebraska R., extending from Atchison, Kan., to Lincoln, Neb., was completed to Lincoln in 1871, and leased to the B. & M. R. in 1880. Held, that it did not form a continuous line with the B. & M. R., and was not within the provisions of the statute authorizing the making of a lease, and that such lease was unauthorized. The mention in the statute of continuous or connected lines excludes all others.

The powers of a corporation organized under legislative statutes are such, and such only, as the statutes confer. The charter of a corporation is the measure of its powers, and the enumeration of these powers implies the exclusion of all others.

Where a railroad company, without authority of law, leases its road to another railway company, with all its rights, property, and franchises, for a

long period of time, it thereby abandons the operation of its road, and is subject to forfeiture.

Section 3, art. 11, Const., prohibits any railroad corporation from consolidating its stock, property, franchises, or earnings, in whole or in part, with any other railroad corporation owning a parallel or competing line. The word "consolidate " is used in the constitution in the sense of join or unite. Section 5, art. 11, Const., prohibits the issuing by a railway corporation of stocks or bonds, except for the consideration actually received. One of the objets of this provision is to enable the public to ascertain the actual cost of each railway in the State, and to enable the legislature to pass laws fixing an equitable rate of taxation, and for the transportation of persons and proparty, so that justice may be done alike to the raiiway company, the public, and private individuals.

Quo Warranto.

William Leese, Atty. Gen., and C. G. Dawes for relator.
T. M. Marquett and J. M. Woolworth for respondent.

FACTS.

MAXWELL, J.-This is an original action brought in this court by the attorney-general to oust the defendant from its franchises. The attorney-general alleges in the information that, "on the 25th day of April, A.D. 1871, articles of incorporation were duly filed in the office of the secretary of state of Nebraska by A. J. Cropsey, A. A. Egbert, T. E. Calvert, George Morrison, and O. Chanute, duly incorporating, under the laws of the State of Nebraska, the Atchison, Lincoln & Columbus R. Co. The object and purpose of this company was to construct, maintain, and operate a line of railroad, with single or double tracks, and with all the necessary branches, fences, bridges, warehouses, elevators, station-houses, and such other appurtenances as might be thought necessary, extending said line of railroad from a point at the southern line of the State of Nebraska, where the Atchison & Nebraska R. Co. crosses said State line, and from thence running northward and westward through the counties of Richardson, Pawnee, Gage, Johnson, Lancaster, Seward, and Butler, by way of Lincoln, to the town of Columbus, on the Union Pacific R. in Platte county.' A copy of the articles of incorporation is attached to the petition as an exhibit. (2) "That on the 10th day of August, A.D. 1871, and long before the aforesaid line of railroad was completed, the said Atchison, Lincoln & Columbus R. Co. consolidated all of its stock and property of every kind and nature, with the stock and property of every kind, of the Atchison & Nebraska R. Co., a corporation organized under the laws of the State of Kansas; and it was agreed in said articles of consolidation, a copy of which was filed in the office of the secretary of state of this State, that the aforesaid two consolidating companies should constitute but one corporation in law, and to be known and named the Atchison & Nebraska R. Co." A copy of the said articles of consolidation is attached to the petition, and that part of the line of railroad of the defendant.

lying and being in the State of Nebraska is sought to be affected
by this proceeding. (3) "Your petitioner would further give the
court to understand and be informed that at the time of the incor-
poration of the Atchison, Lincoln & Columbus R. Co., as well as
the time of the consolidation, the financial circumstances of the
defendant were limited, and they were unable to build the said
railroad from the south line of the State of Nebraska to Columbus,
as aforesaid, and the said company applied to the tax-payers of the
several counties through which said line of railroad was to pass,
for aid to enable the said company to construct and maintain their
railroad as aforesaid." (4) "That the tax-payers and inhabitants
along said proposed line of railroad, for the purpose of obtaining a
railroad and getting direct communication with Kansas, Missouri,
Illinois, and other eastern and southern States, did, as in such cases
made and provided, vote, issue, and deliver to the defendant a
large amount of ten per cent coupon bonds, aggregating, from the
counties of Richardson, Pawnee, Johnson, Gage, and Lancaster,
more than $500,000." (5) "That on or about the 15th day of
January, 1872, said railroad was completed to Lincoln, in Lan-
caster county, Neb., and from said day until January 1, 1880,
was operated and maintained as a competing line of railroad
with the Burlington & Missouri River R. Co. in Nebraska
(a corporation organized under the laws of this State), for all
the freight and passenger traffic lying and being between the
road of this defendant, and a branch line of the aforesaid B. &
M., running from Lincoln, in Lancaster county, to Nemaha City,
in Nemaha county, by the way of Nebraska City, on the east side,
and with a branch line of said B. & M. running from Lincoln by
way of Crete to Beatrice, in Gage county on the west side, of the
defendant's line. That during all of the time aforesaid there was a
strong competition between the aforesaid lines, thereby producing
a reasonable, but low, rate of charges for freight and passenger
traffic, and the people living within the territory above described
received a great advantage by reason of the low and reasonable
rates charged for the transportation of freight and passengers on
the defendant's railroad, resulting from the competition aforesaid.
That by the competition aforesaid, the freight belonging to people
using defendant's line of railroad was shipped south to the city of
Atchison, in Kansas, and from there connected with other lines of
railroads that were competing with the Burlington & Missouri
River R. for Chicago freight, and for other points east. That
freight coming from Chicago and other eastern points to the
people living along the line of the defendant's railroad was brought
at greatly reduced rates, and all the people living in the south-
eastern quarter of our State received the many advantages derived
from competing railroads." (6) "That on the 1st day of January,
A. D. 1880, as aforesaid, for the purpose of defrauding the pote

living along the line of their railroad, and for the purpose of destroying the competition as aforesaid, the said defendant, the Atchison & Nebraska R. Co., disregarding its duties to the State and to the public, unlawfully and wilfully entered into an agreement with the aforesaid Burlington & Missouri River R. Co. to lease their said line of railroad, and all their rights, privileges, franchises, and property of every description to the above last-named railroad company, and on said last-named day the defendant did grant, lease, and demise to the said Burlington & Missouri River R., for the full term of nine hundred and ninety-nine years, all of their railroad, roadway, lands connected with the use and operation of their road, and all machine-shops, depots, and all easements and appurtenances thereunto belonging, as well as all such property as should thereafter be acquired.'

copy

A

of said lease is attached to and made a part of the petition. "In pursuance with the terms of said lease, the defendant, on said day, gave to the said Burlington & Missouri River R. Co. full and absolute possession and control of all its railroad, roadway, rights, privileges, and franchises, its earnings and property of every description; and ever since the 1st day of January, A.D. 1880, the defendant company has utterly and wilfully failed and neglected to maintain or operate their said railroad, or any other railroad, in this State, and have failed in the discharge of its duty to the State and to the public during all of said time, whereby the rights, privileges, and franchises of said defendant in the State of Nebraska have become and are subject to forfeiture." (7) "That afterward, on the 5th day of April, 1880, the defendant conveyed and assigned absolutely all of its lands, bonds, moneys, and property of every description, not included in the lease herein before mentioned, to the aforesaid Burlington & Missouri River R. Co." A copy of said conveyance and assignment is attached to and made a part of the petition. (8) " And your petitioner would further show to the court that the defendant's line of railroad, and the line owned by the Burlington & Missouri River R. Co., in Nebraska, were not connecting or continuous lines of railroads, but, in truth and in fact the two roads were parallel and competing lines, and the lease, conveyance, and assignment as aforesaid were and are ultra vires, in violation of section three of article eleven of the constitution of the State of Nebraska, and against public policy." (9) "That on the said 1st day of January, A.D. 1880, the aforesaid Burlington & Missouri River R. Co. in Nebraska sold, assigned, and transferred all of their railroads, leaseholds, rights of action, contracts, stock, franchises, and all other property of every description whatsoever, to the Chicago, Burlington & Quincy R. Co., a foreign corporation, incorporated under the laws of the States of Illinois and Iowa, and not incorporated under the laws of Nebraska, nor has it filed a copy of