R. Cas. Union Pac. Ry. Co. v. C., R. I. & P. Ry. Co. contract. There does not appear to have been any specific contention in the circuit court or in the court of appeals that that particular clause was invalid; and, if it were, the power reserved in the decree was sufficient to permit an application to the court for its, modification, and the substitution of the judgment of the court. We cannot hold that, if the particular clause were objectionable, the contract would be invalidated as a whole; and it is too late to ask a reversal on the ground. that the clause itself is not enforceable. We do not feel called upon to enter at length upon other objections urged by appellants' counsel. One of them was that the Rock Island and St. Paul porations-Validity. Companies derived no power from the laws Contracts of Cor. of Nebraska to enter into the alleged contract, because they had not complied with the statutes of the state in that behalf. After the testimony was closed, and as the final hearing commenced, defendants moved the court to permit the introduction of the evidence upon which this contention is based. This was objected to by complainants, the objection sustained, and defendants excepted. We concur in the view of the circuit court of appeals, which held that there was no abuse of discretion in the court below in denying the motion, and did not consider the rejected evidence or the argument based upon it. The Rock Island Company built its road from South Omaha to Lincoln as vested with the corporate power to do so, and it contracted as in the possession of the power as a corporation existing in and under the laws of Nebraska. The state appears to have been content, and the contract, not being necessarily beyond the scope of the powers of the corporation, must, in the absence of proof to the contrary, be deemed valid. Nor can the contract be held invalid because, within its prescribed duration, the charter of the Rock Island Company expired by its terms. The contract was carefully drawn in view of such expiration of the several corporate existences tion of Corporate Contracts of Corporations-Expira Existence. of the parties to it, who bound themselves to take such steps as might be necessary to continue the Union Pac. Ry. Co. v. C., R. I. & P. Ry. Co. (N. S.) contract in force. And, as observed by the court of appeals, the contingency that the Rock Island Company "will cease to exist and leave neither assigns nor successors is far too remote to have any influence upon the validity of this contract." 10 U. S. App. 192, 2 C. C. A. 174, 51 Fed. 309. It is also said that the contract was void so far as the Republican Valley Railroad Company was concerned, because without consideration, inasmuch as the Rock Island Company was to pay the Pacific Company for the possession and use of the railway and appurtenant property between Lincoln and Beatrice to the Pacific Company, and so the Valley Company as an independent corporation received no compensation. But the stockholders of the Valley Company entered into the covenants in question, and as each of its incorporators was an officer or employee of the Union Pacific Company; its road was built with the funds of that company; every share of its stock ever issued was taken, held, or voted by some officer or employee of that company in trust for it; the officers of the two companies had always been the same, and in their operation no distinction had ever been made between the two roads; and their earnings had gone into, and their expenditures been paid from, a common treasury,we think there is no merit in the objection that, for the reason given, the Valley Company was not bound by its covenants. But it is earnestly contended that the Pacific Company had no power, under its charter as a federal corporation, to operate any other line of road than those lines which it was specifically authorized by congress to construct, and that it was prohibited, under the constitution and laws of Nebraska, from doing so, and, therefore, that it could not obligate itself to use, and to pay to the Rock Island Company compensation for the use of, the road between South Omaha and Lincoln. It does not appear that this point was called to the R. Cas. Union Pac. Ry. Co. v. C., R. I. & P. Ry. Co. attention of the circuit court, or decided by it; nor, in the errors assigned to the decree of the circuit court in the circuit court of appeals was there any error attributed to the decree in this particular; nor did that court pass upon any such question. It is, indeed, admitted that the point is raised for the first time in this court. We have to determine, on this appeal, whether, in our judgment, the circuit court of appeals did or did not err, and affirm or reverse accordingly. It is true that our decision necessarily reviews the decree of the circuit court in reviewing the action of the court of appeals upon it, and, under the statute, our mandate goes to the circuit court directly; but it is, notwithstanding, the judgment of the circuit court of appeals that we are called on primarily to revise. It will be seen, then, that the judgments of the courts of appeals should not ordinarily be re-examined on the suggestion of error in that court, in that it did not hold action of the circuit court erroneous, which was not complained of. We will, however, make a few observations on the point thus tardily presented. Jurisdiction of The eighth section of the eleventh article of the constitution of that state provided that no railroad corporation of any other state or of the United States, doing business in Nebraska, should be entitled to exercise the right of eminent domain, or have power to acquire right of way or real estate for depot or other uses, until it should have become a corporation of the state, pursuant to the constitution; but we do not see what that provision has to do with this question. The stipulations of the contract relating to the use of the Rock Island tracks between South Omaha and Lincoln by the Pacific Company did not embrace the acquisition of right of way or real estate or the exercise of the power of eminent domain by the latter. By the contract the Rock Island Company gave the Pacific Company "the right and privilege to move and operate its trains over the tracks," and nothing more, Contracts between Railroad Corporations. So. Union Pac. Ry. Co. v. C., R. I. & P. Ry. Co. (N. S.) and it was provided that the Pacific Company should do no business at intermediate points. The Pacific Company was to run its trains over the Rock Island tracks 45 miles, and it agreed to pay a fair compensation for doing It was perfectly competent for the Pacific Company to contract to deliver at Lincoln freight and passengers taken up at Omaha; and, in carrying out such contract, it could make deliveries in car loads, just as well as in small parcels. It follows that its cars might be run through, and the fact that, under this contract, the Pacific Company would haul its cars with its own engines amounts to no more than a mere method of doing the business. And as, when it contracts for deliveries beyond its own line, it must pay the connecting company for its services, that compensation might be fixed by the parties upon any basis they agreed to. Here it agreed to pay a certain sum per mile for the mileage over which its trains run, and the difference between that and any other mode of payment did not go to the powers of the company. Where a corporate contract is forbidden by a statute, or is obviously hostile to the public advantage or convenience, the courts disapprove of it; but when there is no express prohibition, and it is obvious that the contract is one of advantage to the public, the rule is otherwise. As remarked in Navigation Co. . Hooper, 160 U. S. 514, 16 Sup. Ct. 379: "Although the contract powers of railroad companies are to be restricted to the general purposes for which they are designed, yet there are many transactions which are incidental or auxiliary to its main business, or which may be useful in the care and management of the property which it is authorized to hold, and in the safety and comfort of the passengers which it is its duty to transport. Courts may be permitted, where there is no legislative prohibition shown, to put as favorable construction upon such exercise of power by railroad companies as is necessary to promote the success of the company within the powers of its charter, and to contribute to the comfort of those who travel thereon." R. Cas. Union Pac. Ry. Co. v. C., R. I. & P. Ry. Co. And that principle is applicable to the transportation of through freight and passengers over connecting lines. Under the laws of Nebraska, railroad companies are clothed with ample power to make leases, or any arrangements for their common benefit, consistent with and calculated to promote the objects for which they are created. Comp. St. Neb. 1887, p. 248, c. 16, § 94. There is nothing in the charter of the Pacific Company that prohibits such an arrangement as this in controversy, unless by implication; and as by it the public interest was subserved, that company reached its own lines by a shorter route, and accommodated its own through freight and travel, we are not prepared to hold that it was invalid. These observations also apply to the clause of the contract in respect of the road between McPherson and. Hutchinson, but it should be added that that reach of road was held and operated by the Kansas Company, which was a Kansas corporation. The Union Pacific Railway Company was formed by the consolidation of the Union Pacific Railway Company, a federal corporation, the Denver Company, a Colorado corporation, and a corporation originally named the Leavenworth, Pawnee & Western Railway, afterwards called the Union Pacific Railway, Eastern Division, and lastly the Kansas Pacific Railway. The latter company, by its first name, was incorporated under the laws of the territory of Kansas, and, upon the admission of Kansas into the Union, became a corporation of that state. The acts of Congress of 1862 and 1864 clothed it with new franchises, but did not deprive it of its powers as a state corporation, which could be exercised by the consolidated company in Kansas so far as not in derogation of its federal powers. And Kansas corporations were duly empowered to enter into leases and the like by the state laws. 1 Gen. St. Kan. p. 443, c. 23, § 112. 2. Was the contract, if within its powers, duly authorized by the Pacific Company? No question arises but that the contract was executed in due form, and, as to the manner in which its execution was authorized, 6 (N. S.) A. & E. R. Cas.-3 |