to purchase, then, is derivable from the State, the State may accompany it with such limitations as it may choose to impose. Its results, then, from the argument of the appellant that, if there be any interference with interstate commerce it is in imposing limitations upon the exercise of a right which did not previously exist, and hence, if the State permits such purchase or consolidation, it is bound to extend the authority to every possible case, or expose itself to the charge of interfering with commerce. This proposition is obviously untenable.
While the constitutional power of the State in this particular has never been formally passed upon by this court, the power of state legislatures to impose this restriction upon the general authority to consolidate has been recognized in a number of cases. Railroad Co. v. Maryland, 21 Wall. 456, 470; Shields v. Ohio, 95 U. S. 319; Wallace v. Loomis, 97 U. S. 146, 154; New Buffalo v. Iron Co., 105 U. S. 73; Leavenworth v. Chicago &c. Railway, 134 U. S. 688, 699; Livingston County v. Portsmouth Bank, 128 U. S. 102; Keokuk & Western Railroad v. Missouri, 152 U. S. 301; Ashley v. Ryan, 153 U. S. 436. In the last case it was broadly held that a State, in permitting railway companies to consolidate, might impose such conditions as it deemed proper, and that the acceptance of the franchise implied a submission to the conditions, without which it could not have been obtained.
The power to forbid such purchase or consolidation with competing lines has been directly upheld in a large number of cases in the state courts, in some of which cases a violation of the commerce clause was suggested, and in others it was not. Hafer v. Cincinnati, Hamilton & Dayton Railroad, 29 Wkly Law Bull. 68; State v. Atchison & Red River Railroad, 24 Nebraska, 143; Gulf, Col. & Santa Fé Railway v. State, 72 Texas, 404; East Line &c. Railway v. Rushing, 69 Texas, 306; Pennsylvania Railroad v. Commonwealth, 7 Atl. Rep. 368; Montgomery's Appeal, 136 Penn. St. 96; Currierv. Concord Railroad, 48 N. H. 321; Texas & Pacific Railway Co. v. Southern Pacific Railway Co., 41 La. Ann. 970. See also Langdon v. Branch, 37 Fed. Rep. 449; Hamilton v. Savannah
&c. Railroad, 49 Fed. Rep. 412; Clark v. Central Railroad, 50 Fed. Rep. 338; Kimball v. Atchison, Topeka &c. Railroad Co., 46 Fed. Rep. 888.
In conclusion we are of opinion
1. That a general right to purchase or consolidate with other roads was never conferred upon the L. & N. Co.
2. That the Chesapeake Co. was never vested with the power to consolidate its capital stock, franchises or property with that of any other road owning a parallel or competing line.
3. That, conceding that the requisite power existed in both the above companies, section 201 of the constitution of 1891 was a legitimate exercise of the police power of the State, and forbade such consolidation, at least so far as such power remained unexecuted.
The decree of the Court of Appeals of Kentucky is, therefore, Affirmed.
MR. JUSTICE BREWER and MR. JUSTICE WHITE concurred in the result.
1. Gedney Channel, being the main entrance to the harbor of New York, is
as much a part of the inland waters of the United States within the
meaning of the act of March 3, 1885, c. 354, 23 Stat. 438, as the harbor
within the entrance. The Delaware, 459.
2. The real point aimed at by Congress in that act was to allow the
original code (Rev. Stat. § 4233) to remain in force so far as it applies
to pilotage waters, or waters within which it is necessary, for safe
navigation, to have a local pilot. Ib.
3. The Delaware, returning to New York in ballast only, entered Gedney
Channel upon a true course of W. by S. About the same time, the
Talisman, a tug towing a pilot boat, entered it from the northwest,
upon a course about S.SE., and not far from a right angle to the
course of the Delaware. Under these circumstances, as they were ap-
proaching each other on crossing courses, the Delaware was bound to
keep out of the way, and the Talisman to keep her course. The Dela-
ware made no effort to avoid the Talisman, but kept on her course
until about a minute before collision, when her engines were stopped
too late. The Talisman was struck and sunk, and became a total loss.
Held, that the Delaware was grossly in fault. Ib.
4. The Supervising Inspector's rules, so far as they require whistles to be
used, ought to be construed in harmony with the International Code,
and, as applied to vessels upon crossing courses, they mean that when
a single blast is given by the preferred steamer she intends to comply
with her legal obligation to keep her course, and throw upon the other
steamer the duty of avoiding her. Ib.
5. It is the primary duty of a steamer, having the right of way when ap-
proaching another steamer, to keep her course; all authorities agree
that this rule applies so long as there is nothing to indicate that the
approaching steamer will not discharge her own obligation to keep out
of the way; and it is settled law in the United States that the pre-
ferred steamer will not be held in fault for maintaining her course and
speed, so long as it is possible for the other to avoid her by porting, at
least in the absence of some distinct indication that she is about to
fail in her duty. Ib.
6. The facts stated and referred to in the opinion leave too much doubt
about the fault of the Talisman to justify the court in apportioning
the damages. Ib.
VOL. CLXI-45
7. The Delaware is not exempted from liability by the provisions of the
act of February 13, 1893, c. 105, 27 Stat. 445, entitled "An act relat-
ing to navigation of vessels, bills of lading, and to certain obligations,
duties and rights in connection with the carriage of property." Ib.
ANCILLARY SUIT.
See JURISDICTION, A, 1.
See JURISDICTION, A, 8;
PRACTICE, 8.
1. The limitation of two years made by Rev. Stat. § 5057 to suits and
actions between an assignee in bankruptcy and persons claiming an
adverse interest touching any property or rights of property transfer-
able to or vested in such assignee, is applicable only to suits growing
out of disputes in respect of property and of rights of property of the
bankrupt which came to the hands of the assignee, in which adverse
claims existed while in the hands of the bankrupt and before assign-
ment. Dushane v. Beall, 513.
2. Assignees in bankruptcy are not bound to accept property which, in
their judgment, is of an onerous and unprofitable nature, and would
burden instead of benefiting the estate, and can elect whether they will
accept or not after due consideration and within a reasonable time,
while, if their judgment is unwisely exercised, the bankruptcy court
is open to compel a different course. Ib.
3. From the record in this case the court is constrained to the conclusion
that the assignee should not have been held by the court below to have
exercised the right of choice between prosecuting the claim and aban-
doning it, in the absence of any evidence whatever to justify the con-
clusion that he had knowledge, or sufficient means of knowledge, of
its existence prior to August 10, 1888; and that therefore there was
error in its judgment. Ib.
1. Baltzer v. North Carolina, 161 U. S. 240, followed. Baltzer and Taaks
v. North Carolina, 246.
2. Home Insurance & Trust Co. v. Tennessee, 161 U. S. 198, followed.
Home Ins. & Trust Co. v. Tennessee, 200.
3. Spalding v. Vilas, 161 U. S. 483, followed. Spalding v. Dickinson, 499.
See CONSTITUTIONAL LAW, A, 2;
JURISDICTION, Ε, 2;
LOCAL LAW, 4.
CASES EXAMINED.
See TAX AND TAXATION, 4.
CENTRAL PACIFIC RAILROAD.
1. An examination of the statutes of the United States relating to the
construction of a railroad from the Missouri River to the Pacific
Ocean, especially the acts of July 1, 1862, c. 120, 12 Stat. 489, and
July 2, 1864, c. 216, 13 Stat. 356, shows that every subscriber to the
Union Pacific Railroad Company must be deemed to have become
such upon the condition, implied by law, that he should not be
personally liable for the debts of the corporation. United States v.
Stanford, 412.
2. It is equally clear that Congress intended to grant national aid to all
the corporations constructing that connecting line of railroad upon
terms and conditions applicable alike to all, with no purpose to make
discriminations against any one part of the line, and that the im-
position of a liability upon the stockholders of the Central Pacific
Railroad Company for the debts of that corporation, arising out of the
bonds which it received from the United States, when no such liability
was imposed upon the Union Pacific Railroad Company on account of
like bonds received by it, is entirely inconsistent with that equality. Ib.
3. The United States has no claim against the stockholders of the Central
Pacific Railroad Company on account of the bonds issued to that com-
pany by the United States to aid in the construction of its road. Ib.
4. This adjudication is not to be taken as deciding that the stockholders
of the Central Pacific Railroad Company either can or cannot be made
liable for its debts to the United States in some other way than
under the Pacific railroad acts and by the acceptance of the United
States bonds to aid in the construction of the road; nor whether the
adoption of the California corporation as an instrument of the national
government in accomplishing a national object, exempted its stock-
holders from liability, under the constitution and laws of California,
to ordinary creditors. Ib.
CLAIMS AGAINST THE UNITED STATES.
1. By the act of February 26, 1853, c. 81, § 1, (Rev. Stat. § 3477,) every
specific assignment, in whatever form, of any claim against the United
States, under a statute or treaty, whether to be presented to one of
the executive departments, or to be prosecuted in the Court of Claims,
is void, unless assented to by the United States. Ball v. Halsell, 72.
2. A contract, by which the owner of a claim against the United States
for Indian depredations appointed an attorney to receive and give
acquittances for one half of the money which the attorney might re-
cover of the United States upon that claim, will not, although the
attorney has obtained from the Secretary of the Interior a recom-
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