
    *Baltimore & Ohio R. R. Co. v. City of Wheeling.
    October Term, 1855,
    Richmond.
    ■. Injunctions — Violation ot — Contempt Proceeding, How ■ Reviewed. — A proceeding for a contempt in disobeying an inj nnction is not an order in the cause; but it is in the nature of a criminal proceeding, and the judgment in such a proceeding can only be reviewed by a superior tribunal by writ of error, and not always in that way.
    2. Same — Order Overruling Motion to Dissolve — When Appealable. — An order overruling a motion to dissolve an injunctionmay be appealed from, If the principles of the canse are thereby adjudicated ; andithis though such an order is made in vacation.
      
    
    3. Same — Same—When Not Appealable. — The court, for good cause shown, may overrule a motion to dissolve an injunction and continue it to the hearing, without adjudicating the principles of the cause ; in which case no appeal will lie from the order.
    4. Same — Same—When Appeal Refused liven Though Principles Are Adjudicated.? — where the principles of the cause are adjudicated by such order, an appeal may be refused, If the court or judge towhom the petition of appeal Is presented deems it most proper that the cause should be proceeded In further in the court below before an appeal is allowed therein. And if, in such case, an appeal is allowed, it may be dismissed as prematurely allowed.
    
    5. Same — Motion to Dissolve — Objections to. — Iu a case which is purely an injunction cause, the parties having had time to prepare the case, and having taken testimony to support their respective pretensions, and it not being probable that any other facts can be brought into the canse which will afiect its principles, a motion was made in vacation to dissolve the injunction, on the ground that It was improvidently awarded, and upon the cause *as it then stood. The hearing of the motion was objected to: 1st. Because a foreign corporation, which was a party, had not answered. 2d. Because exceptions had been filed to the sufficiency of the answer of the defendant, which were still pending and undetermined. 3d. Because the answer of the defendant, a corporation, was not verified by affidavit. The judge heard the motion, but refused to dissolve the injunction, and continued it until further order or decree. Held:
    1. Same — Same—Refusal to Dissolve — Principles Adjudicated — Appeal.—The refusal of the judge to dissolve the Injunction adjudicated theprinciples of the cause to the extent that the injunction had not been improvidently awarded ; and that the cause, as it then stood, ought to be continued. It is therefore such an order as may be appealed from ; and it Is a proper case for appeal at once.
    2. Same — Same—Fallureof Foreign Corporation to Answer — Not Grounds to Refuse Dissolution. — That the defendant which had not answered being a foreign corporation, which could not be com- • pelled to answer, and the answer not being required for a discovery; the absence of such answer is not ground for refusing to dissolve the injunction.
    3- Same — Same—Objections to. — That as upon a motion to dissolve an injunction all the allegations of the bill, which are not denied by the answer, are taken as true, it is no objection to the motion to dissolve, that the exceptions to the answer for insufficiency had not been acted on.
    
      4. Same — Same—Unsworn Answer of Corporation a Mere Pleading. — As a corporation cannot be sworn, it must put in its answer under its common seal only. Not 'being sworn to, it is not evidence for tbe corporation, tliougli responsive to tbe bill; but it puts in issue tbe allegations of tbe bill to which it responds: and this as well npon a motion to dissolve tbe injunction, as upon tbe bearing.
    6. Statutes — Construction of — Case at Bar. — The act of March 6th, 1847, Sess. Acts, cb. 99, p. 86, in securing to tbe city of Wheeling tbe benefits of the western terminus of tbe Baltimore and Ohio rail road, does not forbid said company to connect with tbe Ohio river or a rail road in the state of Ohio, at any point between tbe mouth of Grave creek and Wheeling. 
    
    7. Same — Same—Same.—To induce tbe Baltimore and Ohio Bail Boad Company to accept tbe act of March 6th, 1847, tbe city of Wheeling and tbe company entered into a contract, by which Wheeling undertook to do certain things therein specified; and the committee of the company agreed to recommend to it to accept said act: “It being the intention of the parties to the agreement, among other things, to secure to the city of Wheeling the practical benefits of the terminus of the Baltimore and Ohio rail road, according to the provisions of said*law.” The company is not forbidden by the contract to connect with the Ohio river, or a rail road in the state of Ohio, at any point between the month of Grave creek and Wheeling.
    8. Same — Same—Case at Bar. — The Baltimore and Ohio Bail Boad Company having been subjected by the act of March 6th, 1847, to the provisions of the act in relation to rail roads, passed March 11th, 18.37, “so far as the same are properly applicable;” under this last act, -the company has power to make a branch road from the line of her road to low water mark on the Ohio river, between Grave creek and Wheeling, in order to form a connection with the river, and with a rail road in Ohio, terminating opposite on the other bank of the river. X
    
    9. Corporations — When Stockholder Has a Right to Enjoin Action of. — Although a stockholder in a corporation may enjoin it from employing the property or powers of the corporation for a purpose -wholly or materially different from that which was designed by the act of incorporation, yet it has no right to enjoin it from doing what is in direct furtherance of the object of its creation, and it is for the benefit of all the stockholders as such; though it may be injurious to such stockholders in another character; or the interest of some other person or the public maybe injuriously affected by the work about to be executed.
    In November 1854, the city of Wheeling-applied to the judge of the Circuit court of Marshall county for an injunction to restrain the Baltimore and Ohio Rail Road Company from forming a connection with the Central Ohio rail road at Benwood, a place on the Ohio river about four miles southwest of Wheeling. In the bill it was set out that the general assembly of Virginia, on the 6th of March 1847, passed the act entitled “An act to authorize the Baltimore and Ohio Rail Road Company to construct the extension - of their rail road through the territory of Virginia,” thereby intending, among other purposes, “to secure to the said city of Wheeling the benefits of the western terminus” of that road. That the act is framed with a view to require the business of the road at the Ohio river to be transacted or concentrated in the city of Wheeling as “the western terminus.” That after the passage of this act a contract in writing *was made between the said company and the said city, dated the 6th day of July 1847, and duly ratified by both parties during the year; it being the intention of the parties, as expressed in the contract, among other things, “to secure to ' the citj- of Wheeling the practical benefits of the western terminus of the Baltimore and Ohio rail road, according to the provisions of said law.” That it was the duty of the said company so to exercise the privilege conferred upon it by the state as to secure to the said city the practical benefits of the said western terminus. That the practical benefits contemplated by the parties were the transaction in said city of the business between the rail road and the Ohio river, and that between said road and the Central Ohio rail road.
    The bill further set out the performance by the city of Wheeling of the stipulations of the aforesaid contract, and especially that the city had subscribed for stock of the company to the amount of five hundred thousand dollars, and was a stockholder to that amount; though in fact at the time the subscription was made and since, the stock was worth little more than half that sum; and it was well understood at the time by the parties to the contract aforesaid, that the chief inducement to the city of Wheeling to make the said subscription and the donations and grants mentioned in said contract, was the expected practical benefits of the western terminus of the road, and not the value of the stock.
    It was further stated, that in direct and manifest violation of these obligations of the law and the said contract, the Baltimore and Ohio Rail Road Company were engaged in the construction of certain works at and near 'Benwood, a place on the east bank of the Ohio river, about four miles southwestward of their depot in the city of Wheeling, for the purpose of there receiving and delivering the travel of the Central *'Ohio rail road; and for the same purpose had adopted and approved, in conjunction with the said Central Ohio Company, certain plans for the ferriage of such traffic and travel across the Ohio river at that place. And that the same structures were adapted and designed for making transfers of freight and passengers to the Baltimore and Ohio rail road from vessels navigating the Ohio rjver, and to the latter from the former.
    The bill further stated, that the road of the Baltimore and Ohio Rail Road Company having been built near the hills, this connection at Benwood could not be made without great expense; and it described the works which the company was constructing. These consisted of a branch road extending from the main track down the bank of the river, and into it to low water mark, the whole being about two thousand feet in length, and a large embankment being made into the river for about three hundred feet, upon which a wharf was to be constructed. Just opposite this structure was one like it, erected by the Central Ohio Company;.and by the agreement between the companies, the latter was to run a steamer from the one wharf to the other for the transportation of freight and passengers. And it was charged that the object of this structure was illegal, and in violation of the contract between the city of Wheeling and the Baltimore and Ohio Rail Road Company; that the expenditure of the money of the company upon the work was an improper application of the funds of the company; and that the embankment and wharf extended into the river would be injurious to its navigation.
    It is further stated, that the Central Ohio Company is authorized by its charter to extend its road to a point opposite the city of Wheeling; and such had been the declared purpose of that company, until the Baltimore and Ohio Rail Road Company had consented *to make the structures and have the connection between the two roads at Benwood. And it is charged that said company has no authority to make the agreement entered into with the Ohio company.
    It is further stated, that the Baltimore and Ohio Rail Road Company have illegally agreed to lend to the Central Ohio Rail Road Company the effects of the former company to the amount of four hundred thousand dollars, being bonds of the Northwestern Virginia Rail Road Company. That this loan was made to enable the Ohio company sooner to accomplish the said connection at Benwood; and was wholly unauthorized by any law of this state, and was in violation of the rights of the city of Wheeling as a stockholder as aforesaid.
    It is charged that the city of Wheeling will be injured by the action of the Baltimore and Ohio Rail Road Company, in being thereby deprived of the practical benefits of the western terminus of the road; that as owner of wharfs in the city, from which a revenue is derived, the city will be materially injured, and also as a stockholder of the company; and that the injuries which would be done by the completion of the works at Benwood would be great and irreparable.
    The Baltimore and Ohio Rail Road Company and the Central Ohio Rail Road Company were made defendants to the bill, and called upon to answer. And the prayer of the bill was for an injunction to restrain them and each of them from parting with any of the bonds of the Northwestern Rail Road Company aforesaid. That the Baltimore and Ohio Rail Road Company, their officers and agents, might be restrained from carrying into effect the said contract, or anjr contract between them and the Central Ohio Rail Road Company, or any contract, agreement or arrangement between their respective officers, in pursuance of *which the one of said defendants was to receive from or deliver to the other, at or near Benwood, freight or passengers carried on . the rail road of one of them, and to be carried on the rail road of the other, or in pursuance whereof the Baltimore and Ohio Rail Road Company were constructing or were to construct or complete any such works at or near Benwood as they were constructing or about to construct as aforesaid; or to use the same or any part thereof, or to use, employ, or run any such steamboat as aforesaid, or to make any such loan as aforesaid to the Central Ohio Rail Road Company; and to restrain the Baltimore and Ohio Rail Road Company, their officers and agents, from doing any such acts, whether in pursuance of such contract, agreement or arrangement as last aforesaid or not; and from constructing or completing, at or near Ben-wood, any wharf, pier or embankment within or below the banks of the Ohio river, or connecting the same with their rail road; from receiving or delivering, at or near the same place, goods, &c., freight or passengers, to be carried on the Central Ohio rail road, or which had been carried on said rail road; and from making any expenditure of money, structures or arrangements, or doing any other act designed or tending to cause or induce freight or passengers, brought from or destined for the Central Ohio rail road or the Ohio river, to be received or delivered on or from the said Baltimore and Ohio rail road, at or near Benwood aforesaid; or to cause or induce any business connected with their rail road, which; without such act or acts on their part, might probably be transacted at Wheeling, to be done or transacted at Ben-wood; from forming any connection with the Central Ohio rail road at that place; and from obstructing the navigation of'the Ohio river by making or completing any wharf, pier or other structure, within the bed or between the banks thereof; or ‘from doing any other act of the like nature with those herein before specified, designed or tending to take away or withhold from the city of Wheeling the practical benefits of the western terminus of the Baltimore and Ohio rail road, or to injure the interests or violate the rights of the said city as a stockholder in the Baltimore and Ohio Rail Road Company, or as interested in the navigation of the Ohio river. That all such structures made by the said company within the bed or between the banks of the Ohio river might be abated and removed; and for general relief.
    The application for an injunction was made to the judge in vacation, upon notice to the Baltimore and Ohio Rail Road Company; and that company and the city of Wheeling having appeared by counsel, the judge awarded the injunction substantially according to the prayer of the bill.
    At the April rules for 1855 the Baltimore and Ohio Rail Road Companj1- filed its answer. The company, whilst it admitted the act of 1847 and the contract with the city of Wheeling, referred to in the bill, strenuously contested the construction put upon them in the bill, and referred to their several provisions, as well as the past action of the general assembly and the company, as showing conclusively that the construction insisted on by the city of Wheeling was erroneous; and that both under the law and the agreement the company was entitled to form a connection with the Central Ohio rail road at Benwood, and had authority to make the branch road from its main track to the river, and do all other things which had been done by it to form that connection. The answer admits that it was expected at the time the agreement was made, that the Central Ohio Company would terminate its road opposite Wheeling, and avers that the Baltimore Company desired and endeavored to induce said company to do so: But it was an independent ‘company, over which the Baltimore and Ohio Rail Road Company had no authoritative control; and judging for itself of its own interests, it had determined to terminate its road, at least for the present, at Bellair, opposite Benwood. It denies that the practical benefits of the terminus which it was -intended that Wheeling should enjoy, were such as are stated in the bill. It admits the compliance by Wheeling with the terms of the agreement. And it admits that at the time the injunction was granted they were employed in the construction of works substantially the same as described in the bill, for the purpose of facilitating the connection with the Central Ohio rail road at Benwood, both as to trade and travel; but they deny that these works have reference to the river trade, as the latter would be more convenient to them received at Wheeling. They were advised, however, that if any freight was offered at Benwood, which is a regular station of the company, they could not decline it. They deny that the works constructed by them would in any manner obstruct the navigation of the river; and if it did, they insist that the plaintiff has no right to raise such a question in this form of proceeding: And they demur to so much of the bill as relates to this subject.
    The answer further denies that there was any specific agreement between them and the Central Ohio Rail Road Company as to said works or ferry boat. There was simply a concert of action to subserve the mutual convenience of both parties; nor had the Baltimore and Ohio Rail Road Company any interest in the ferry boat referred to. But if such had been the case, they had a right to enter into such an agreement or arrangement as charged in the bill.
    The answer further denies that the expenditures were unnecessary, wasteful or illegal. It admits the loan to the Central Ohio rail road of four hundred ‘thousand dollars, as charged in the bill, but denies that the transaction was illegal or injudicious; and whatever might be its true character, it was not a proper subject of enquiry in this cause; and this part of the bill is demurred to. They say that this loan was in no manner connected with the connection at Benwood; and that these bonds, whether properly or improperly loaned, as above mentioned, have long since been transferred to said Central Ohio Rail Road Company, and are therefore alike beyond the control of the respondents and the court.
    They deny that they have in any manner interfered to injure or affect the proper rights and interests of the plaintiff, in yielding to the necessity arising from no act of theirs, of forming the proposed connection with the Central Ohio rail road at Benwood; a right which they are advised properly belongs to them, and which a due regard to the interests of those whom they represent required them to exercise.
    The answer was not sworn to, but was under the corporate seal of the company. To this answer the plaintiff filed numerous exceptions for the failure to respond to special allegations in the bill. The cause was, on the motion of the defendant, set for hearing on the bill and answer. And on motion of the plaintiff, the exceptions were set down for hearing and argument at the next term. And the cause was set for hearing as to the Central Ohio Rail Road Company.
    At the May term of the court for Marshall county, the plaintiff moved the court for a fine and sequestration, for the contempt of the company in willfully disobeying the order of injunction made in the cause; and a rule was made upon the company to show cause against it upon a certain day in the term.
    Upon the hearing of the rule, a number of affidavits and depositions in relation to the action of the Baltimore and Ohio Company were read, which satisfied ‘the court that the injunction had been violated by the company. But whilst it held that there had been a violation of the injunction, j^et being of opinion that it was not committed with a willful intent to disobey the order of the court, the rule was discharged upon the payment of the costs thereof bjr the Baltimore and Ohio Rail Road Company. And the court then proceeded to explain in its order what action by the company would be a violation of the injunction.
    On the 12th of May 1855, the Baltimore and Ohio Rail Road Company gave notice to the city of Wheeling that on the 5th of June the company would move the judge in vacation for a dissolution of the injunction. And on that day the parties appeared before, the judge, when the counsel of the company moved for the dissolution of the injunction, as well upon the ground that the said order of injunction had been improvidently awarded, as upon the cause as it then stood: And thereupon the plaintiff offered the affidavit of its counsel, and objected to the said motion and to the determination thereof, until a sufficient answer should be filed by the defendant; and also by the other defendant, the Central Ohio Rail Road Company: And also objected, that the Baltimore and Ohio Rail Road Company was not entitled to move for such dissolution upon its answer theretofore filed, because it was not verified by affidavit. And the said matters being argued, upon consideration thereof the judge overruled the motion to dissolve, and ordered that the injunction be continued until further order or decree. And the clerk of the Circuit court of Marshall was directed to enter the certificate of the judge’s order among the records of said court.
    The affidavit of the counsel stated that he had endeavored, by such means as oc*curred to -him, to be legal and effective, to mature the cause as well against the Central Ohio Rail Road Company as the other defendant, *and to obtain the answer of that company; and that he .considered it material for the interests of his client that the Central Ohio Rail Road Company should appear and answer the bill. And he stated that almost continually since the said injunction was issued he had been engaged in different courts, so that he had been unable to collect and take the testimony which he considered material for the complainant in the cause.
    Beside a mass of documentary evidence, and the affidavits and depositions taken upon the proceeding for contempt, the examinations of the president of the Baltimore and Ohio Rail Road Company and of one other of its officers, taken upon interrogatories, were filed in the cause. The evidence .is sufficiently stated by Judge Moncure in his opinion.
    The judge having refused to dissolve the injunction, the Baltimore and Ohio Rail Road Company applied to this court for an appeal, both from the order in the proceeding for contempt and from that refusing to dissolve the injunction ; which was allowed.
    A. Hunter, Patton and Robinson, for the appellant, insisted:
    1st. That it was not competent for Wheeling to raise the question whether the navigation of the Ohio river was injured by the construction of the embankment and pier to low water mark, by the Baltimore and Ohio Rail Road Company. That is a question, as they insisted, which can only be raised by the state in a proper proceeding for the purpose. They referred to Beveridge v. Lacey, 3 Rand. 63; O’Brien v. Norwich & Worcester R. R. Co., 17 Conn. R. 372; City of Georgetown v. Alexandria Canal Co., 12 Peters’ R. 91; Bigelow v. Hartford Bridge Co., 14 Conn. R. 565; Corning v. Lowerre, 6 John. Ch. R. 439; Crowder v. Tinkler, 19 Ves. R. 617; Dimes v. Petley, 69 Eng. C. L. R. 276. *And they insisted, that in fact there was no obstruction to the navigation.
    2d. That it was not a case in which the city of Wheeling, as a stockholder, had a right to come into equity to enjoin the expenditure of money in constructing the works at Benwood, or the loan of the bonds to the Central Ohio Railroad Company. That the loan was not made to enable that company to construct its works at Bellair, opposite Benwood, with a view to the connection of the two roads, but to enable the company to reach the river: and that the expenditure of money in forming the connection was essential to the prosperity of the Baltimore and Ohio Rail Road Company ; and the policy of that connection, if the company was authorized to make it, no stockholder of the company, looking to his interest as a stockholder, could for a moment doubt. . That in fact the city of Wheeling was endeavoring to use its character of a stockholder to sustain what it deemed its interests as a city. That the only ground on which a stockholder can come into equity in such a case is, where the company is about to apply its effects to an illegal purpose; and then the power will be exercised with great caution, and only where the damage would be irreparable. Ffooks v. London and Southwestern Railway Co., 19 Eng. Law & Equ. R. 7; Graham v. Birkenhead & C. Co., 6 Eng. Law & Equ. R. 132.
    3d. That an appeal lies from an order in vacation refusing to dissolve an injunction. That this was so formerly ; Lomax v. Picot, 2 Rand. 247; Talley v. Tyree, 2 Rob. R. 500; and that the Code of 1849 was still more explicit. Code, ch. 182, l 2, p. 682; Penn v. Whiteheads, 12 Gratt. 74.
    4th. That under the act of March 6th, 1847, which expressly subjected the Baltimore and Ohio Rail Road Company to the provisions of the general rail road law, Code, ch. 61, § 1, p. 316, that company had the *power to construct the branch road at Benwood; and that instead of there being any provision in the act which, either in its terms or by implication, forbade the company to connect with other roads elsewhere than at Wheeling, its provisions plainly showed that such a power was understood to exist as to any point between Grave creek and Wheeling. And the act also showed that instead of securing to Wheeling the benefits of the terminus of the road, by forbidding the connection with other roads elsewhere than at Wheeling, that act provided other means for effecting this object. They referred to | 4 of the act, to show that it recognized the existence of the power to make a branch of the road; | 2, to show what were the means relied on to give to Wheeling the benefit of the terminus; and to § 6, to show that the company is also protected. They further denied that the benefits of the terminus of the road contemplated by the statute were such as were claimed by the city of Wheeling. They also referred to the previous and subsequent legislation of the state of Virginia and to the previous action of the company, to show what was the true meaning of the act of March 6th, 1847.
    5th. That the agreement between the city of Wheeling and the company did-not give the city any greater rights as to the benefits of the western terminus, than was conferred by the act of March 6th, 1847. And they further insisted that the agreement was so indefinite and uncertain in its terms that a court of equity would not enforce a specific execution of it. They referred to James v. Cochrane, 7 Welsb. Hurlst. & Gord. 170; Aspdin v. Austin, 48 Eng. C. L. R. 671; Dunn v. Sayles, Id. 685; Kemble v. Kean, 6 Simons R. 333, 9 Cond. Eng, Ch. R. 296; Kimberley v. Jennings, Id. 340, Id. 300; Baldwin v. Society for the Diffusion of Useful Knowledge, 9 Id. 393, 16 Id. 394; 2 Eden on Inj. 365, note. *6th. That the judgment upon the proceeding for contempt was erroneous, because the original order of injunction was improper. Benwood was a regular station, at which the company was bound by law under a penalty to receive all passengers and freight that were offered. Drewry v. Thacker, 3 Swanst. R. 546; 2 Eden on Inj. 363.
    Russell, for the appellee, insisted:
    1st. That the appeal ought not to have been allowed from the judgment in the proceeding for contempt, because it was not an order in the cause, but a judgment in a criminal proceeding at the suit of the commonwealth. And the judgment was correct. 3 Eng. Law and Equ. R. 263; Ogden v. Gibbons, 4 John. Ch. R. 174.
    2d. That no appeal lies from a refusal of the judge in vacation to dissolve the injunction. And in this case the order of the judge does not adjudge the principles of the cause, and therefore no appeal lies. Code, ch. 182, f¡ 2, p. 682. At least only the bill can be regarded on the appeal, because the order adjudicated the principles only, if at all, by affirming that the bill contains sufficient equity.
    3d. That the city of Wheeling, as a stockholder in the company, had a right to come into equity to enjoin the execution of the illegal contract between the Baltimore and Ohio Rail Road Companj^ and the Central Ohio Company for making the connection at Ben-wood; and also to enjoin the Baltimore and Ohio Company from constructing a work or expending money not authorized by its charter: And of this character, he insisted, was the building a pier in the bed of the river; the transportation of freight and passengers to and from the state of Ohio by ferriage, &c. ; and the loan to the Central Ohio Rail Road Company. He referred to Beman v. Rufford, 6 Eng. Law & Equ. R. 106; Winch v. Birkenhead Lanc. & Chesh. June. Railway Co., 13 Id. 506; Code, ch. 62, § 3, p. 326; Dimmett v. Eskridge, 6 Munf. 308, 311; Inhabitants of Springfield v. Connecticut River R. R. Co., 4 Cush. R. 63; Rex v. Trafford, 20 Eng. C. L. R. 498; Trafford v. The King, 21 Id. 272; Rex v. Ward, 31 Id. 92; Peavey v. Calais R. R. Co., 30 Maine R. 498. To show the rule in construing the powers of corporations, he referred to State of Ohio v. Granville Alexandria Soc., II Ohio R. 1, 12; State of Ohio v. Washington Social Library Co., Id. 96; Moorehead v. Little Miami R. R. Co., 17 Id. 340; People v. Utica Ins. Co., 15 John. R. 358, 381; New York Fire Ins. Co. v. Ely, 2 Cow. R. 699; Beaty v. Knowler’s lessee, 4 Peters’ R. 152; Simpson v. Denison, 13 Eng. Law & Equ. R. 359; and New York & Sharon Canal Co. v. Fulton Bank, 7 Wend. R. 412; and insisted that according to the principle established in these cases, the contract between the two rail road companies, establishing between them a partnership in transporting from one state to another, &c., was unauthorized by the charter of the Baltimore and Ohio Rail Road Company. Middle Bridge Corporation v. Marks, 26 Maine R. 326.
    4th. That the acts enjoined were illegal, because they were in conflict with the provisions of the company’s charter intended to secure to Wheeling the benefit of the western terminus of the “road. And that Wheeling would be entitled to enforce these provisions by injunction, even if she had no contract with the company. Blakemore v. Glamorganshire Canal Nav., 6 Cond. Eng. Ch. R. 544; Coats v. Clarence Railway Co., 1 Russ. & Mylne 181, 4 Cond. Eng. Ch. R. 378; Livingston v. Van Ingen, 9 John. R. 507, 585. But that if this were otherwise, the law, he insisted, was incorporated in the contract between Wheeling and the company, and she might sue to enforce the provisions of the law as parts of her contract. And to aid *in the construction of both, he gave a history of the transactions between the parties, and of the legislation of the state on the same subject; and also a statement of extrinsic circumstances existing at the date of the charter and the contract, and having relation thereto.
    5th. To show that the paper on which he relied was an agreement binding on the company, he referred to Shepherd’s Touchstone 162; Foster v. Mapes, 1 Leonard’s R. 324; Hill v. Carr, 1 Ch. Cas. 294; Hallis v. Carr, 2 Mod. R. 86; Rigly v. Great Western Railway Co., 14 Mees. & Welsb. 811; Easterly v. Sampson, 19 Eng. C. L. R. 188, 17 Id. 431; Saltoun v. Houston, 8 Id. 368; Chesapeake & Ohio Canal Co. v. Baltimore & Ohio Rail Road Co., 4 Gill & John. 1, 129; Newby v. Forsyth, 3 Gratt. 308; Seddon v. Senate, 13 East’s R. 63; Duke of St. Albans v. Ellis, 16 Id. 352.
    6th. He insisted, that as by the charter of the company Wheeling was entitled to the benefits of the western terminus of the road, the company could not, unless specially authorized, do any act to defeat that benefit, although the act be of a class which was lawful for such corporations generally. Nor could the enumeration of particular means for securing that object absolve the company from the duty of abstaining front all efforts to defeat the object by the exercise of mere general franchises; especially when its charter explicitly confers these general powers only, ‘ ‘so far as properly applicable.” Nothing less than an express grant of power to do the very act in the very case could justify acts opposed to the general purpose. He referred to Angel & Ames on Corporations, p. 84, 96; 2 Kent’s Com. 298; People v. Utica Ins. Co., 15 John. R. 358, 380; London & Brighton R. R. Co. v. Cooper, 2 Eng. Railr. & Can. Cas. 229; Blakemore v. Glamorganshire Canal Nav., 6 Cond. Eng. Ch. R. 544. That this was so under the charter; and that the agreement by the company “to secure to Wheeling the practical *benefits of the terminus,” rendered it only still more obligatory upon the company to abstain from every act which could defeat that object. That agreement, interpreted in good faith, signified to Wheeling that the company would so exercise its powers and privileges, under the law, as to secure to her these practical benefits as far as it lawfully could. Or at the very least, that it w.ould not voluntarily exercise or abuse those powers so as to defeat her just expectations as to these benefits, unless obliged by law to do so.
    
      
      contempt Proceeding — How Reviewed. — For the proposition laid down in the first headnote of the principal case that, a proceeding for a contempt is in the nature of a criminal proceeding and the judgment In such a proceeding can only be reviewed by a superior tribunal by writ of error, and not always In that way, the principal case Is cited and followed in Ruhl v. Ruhl, 24 W. Va. 283; McMillan v. Hickman, 35 W. Va. 714, 14 S. E. Rep. 230; State v. Irwin, 30 W. Va. 415, 4 S. E. Rep. 419.
      In addition to the above authorities, see division 3, H., monographic note on “Contempts” appended to Wells v. Com., 21 Gratt. 500.
    
    
      
      Injunctions — Order Overruling Motion to Dissolve— When Appealable. — For the proposition laid down in the principal case that an order overruling a motion to dissolve an injunction may be appealed from, if the principles of the case are thereby adj udicated, the principal case is cited and approved in Kahn v. Kerngood, 80 Va. 344; Bristow v. Home Bldg. Co., 91 Va. 23, 20 S. E. Rep. 946; Vance v. Snyder, 6 W. Va. 29; Gallaher v. Moundsville, 34 W. Va. 736, 12 S. E. Rep. 861; note to London-Virginia Min. Co. v. Moore, 6 Va. Law Reg. 44. See, in accord, Talley v. Tyree, 2 Rob. 590; Lomax v. Picot, 2 Rand. 247. See, in general, monographic note on “Injunctions.”
    
    
      
      Code, ch. 182, § 2, p. 682. “A person who is a party to" “any case in chancery wherein there is a decree .or order dissolving an injunction, or requiring money to be paid, or the possession or title of property to be changed, or adjudicating the principles of the cansé, or to any civil case, wherein there is a final judgment, decree or order, may present a petition, if the case be in chancery, for an appeal from the decree or order, or if not in chancery, for a writ of error or supersedeas to the judgment or order, except,” &c.
      ?Same — Same—When Appeal Refused Even Though the Principles Are Adjudicated. — For the proposition that, where the principles of the canse are adjudicated by such order, an appeal may be refused, If the court or judge to whom the petition of appeal is presented deems it most proper that the cause should be proceeded in further in the court below before an appeal is allowed therein, see principal case cited and followed in Kahn v. Kerngood, 80 Va. 346.
    
    
      
       Code, ch. 182, § 10, p. 684.. “The peti tion shall be rejected when it Is for an appeal from an interlocutory decree or order, in a case which the court or judge towhom it is presented deems it most proper should be proceeded In farther in the court below, before an appeal is allowed therein.”
    
    
      
      Same — Same — Failure of Foreign Corporation to Answer — Not Grounds for Refusal to Dissolve. — In N. & W. Ry. Co. v. Old Dominion Baggage Co., 97 Va. 90, 33 S. E. Rep. 385, it is said, citing the principal case, “As a general rule, subject to some exceptions, an Injunction, properly granted, will not be dissolved until the defendant has answered.” The principal case seems to be one of the exceptions, for it holds, that one of the defendants which had not answered being a foreign corporation, which could not be compelled to answer, and the answer not being required for a discovery, the absence of such answer is not ground for refusing to dissolve the injunction.
    
    
      
      Same — Same—Unsworn Answer of Corporation a Here Pleading. — For the proposition that, as a corporation cannot be sworn it must put in its answer under its common seal only, and the answer not being sworn to, is not evidence for the corporation, though responsive to the bill, but puts In issue the allegations of the bill to which it responds, and this as well upon a motion to dissolve the injunction, as upon the hearing, the principal case is cited and followed in the following cases: Teter v. West Virginia Cent., etc., Ry. Co., 35 W. Va. 433, 14 S. E. Rep. 147: Miller v. Aracoma, 30 W. Va. 612, 5 S. E. Rep. 151; 1 Va. Law Reg. 152. See, in accord, Roanoke St. Ry. Co. v. Hicks, 96 Va. 510, 32 S. E. Rep. 295. See generally, monographic note on “Private Corporations.”
    
    
      
      Statutes — Construction of. — See the principal case cited and followed in Blanton v. R., F. & P. R. Co., 86 Va. 623, 10 S. E. Rep. 925.
    
    
      
      See the opinion of Judge Moncure for the statutes.
    
   MONCURE, J.

Before the merits of this case are considered, it is necessary to dispose of several preliminary questions.

1. As to the order of the Circuit court in the proceeding for contempt. It is not an interlocutory order made in the cause; much less an order adjudicating the principles of the cause. A contempt of court is in the nature of a criminal offense; and the proceeding for its punishment is in the nature of a criminal proceeding. The judgment in such a proceeding can be reviewed, by a superior tribunal, only by writ of error, and not always in that way. Code, p. 682, ch. 182, ? 2; p. 737, ch. 194, g 24, 25, 26 and 27; and p. 779, ch. 209, § 1 and 4. This appeal, so far as it is from that order, must therefore be dismissed.

2. As to the objection that no appeal lies from the other order; it being a mere refusal of the judge in vacation to dissolve the injunction, and not an' order adjudicating the principles of the cause. There seems to be no substantial difference between the provision on this subject in the Code, p. 682, ch. 182, '$ 2, and the law as it existed when the Code took effect. In Lomax v. Picot, 2 Rand. 247, it was decided that an order overruling a motion to dissolve an injunction might come within the terms of the law allowing appeals from interlocutory orders, and within the mischief ^intended to be remedied by that law. The appeal in that case was from such an order, and the court entertained jurisdiction of it. In Talley v. Tyree, 2 Rob. R. 500, it was held, in accordance with Lomax v. Picot, that an appeal lies to this court from an order of a circuit court overruling a motion to dissolve an injunction which was improvidently granted. The law under which those two cases were decided being the same in effect with the provision on the subject in the Code, they maintain the right of appeal from the order in this case. That order adjudicated the principles of the cause, if any order overruling a motion to dissolve an injunction can have that effect. The court, for good cause shown, may refuse to dissolve an injunction and continue it to the hearing, without adjudicating the principles of the cause; in which case of course no appeal would lie from the order. And even when the principles of the cause are adjudicated by the order, an appeal may be refused, if the court or judge to whom the petition therefor is presented deems it most proper that the cause should be proceeded in farther in the court below before an appeal is allowed therein. Code, p. 684, ch. 182, 10. Or if an appeal is allowed in such a case, it may be dismissed as having been prematurely allowed, if the court deems it most proper that the cause should be farther proceeded in as aforesaid. The order for the injunction in this case was made by the judge in vacation on the 22d of November 1854. It was made on due notice of the motion therefor to the Baltimore and Ohio Rail Road Company, and after hearing the argument of the counsel of both parties. The reasons of the judge for making the order were given at length, in writing, from which it appears that he then fully considered the principles of the cause as they appeared in the bill and exhibits. The injunction was not perfected by the execution of process until March *1855. The appellants filed their answer on the 30th of April, and on the 12th of May gave notice to the appellee of a motion to dissolve, to be made to the judge in vacation on the 5th day of June next following. On that day the parties appeared by counsel before the judge, and the motion was accordingly made. It was made as well upon the distinct ground that the injunction had been improvidently awarded, as upon the cause as it then stood. The appellee objected to the motion, and to the determination thereof, on the grounds, 1, that the Central Ohio Rail Road Company had not filed an answer; 2, that exceptions had been taken to the sufficienc3r of the answer of the appellants, which were still pending and undetermined; and 3, that that answer was not verified by affidavit. The said matters being argued by counsel and considered by the judge, he (for the reasons given at the hearing of the motion for the injunction, and filed with the order refusing to dissolve it, and upon the authority of certain cases referred to,) overruled the motion to dissolve, and directed the order of injunction to be continued until further order or decree.

Both parties had taken depositions to sustain their respective allegations in the bill and answer; and those depositions formed part of the cause as it stood when the motion to dissolve was made. The refusal of the judge to dissolve the injunction adjudicated the principles to this extent, that the injunction had not been improvidently awarded, and that as the cause then stood it ought still to be continued. It is therefore such an order as may be appealed from. And it does not seem most proper that the cause should be proceeded in farther in the court below, before an appeal is allowed therein. The parties had ample time to prepare and it seems did fully prepare, the cause for the decision of its principles. It is not probable that any other fact will be brought into it *which can at all affect them. It is mainly, if not entirely, an injunction cause, in which the most summary proceedings compatible with its correct decision seem to be proper. Irreparable mischief may be done, not only by denying, but also by granting and refusing to dissolve an injunction. The legislature has provided the most summary means of relief in both cases, and has authorized an application to a judge in vacation, not only to grant, but to dissolve an injunction. An order refusing to dissolve an injunction seems, therefore, to be peculiarly within the meaning and object of the law authorizing appeals from interlocutory orders adjudicating the principles of a cause. That the order in this • case was made in vacation can make no difference. It is an interlocutory order made by authority of law in the cause, and comes within the letter as well as the spirit of the law in regard to appeals. In Penn v. Whiteheads, 12 Gratt. 74, this court entertained jurisdiction of an appeal from such an order, and affirmed it so far as it overruled the motion to dissolve, but reversed it in other respects. That case at least shows that it is no objection to the appeal in this case that the order appealed from was made in vacation.

3. As to the objection that the Central Ohio Rail Road Company had not filed an answer. It is a general rule that an injunction, properly granted, will not be dissolved until all the defendants have answered. But to this rule there are many exceptions. 2 Rob. Pr. 242; Adams’Equity 196, and note 1. It may be dissolved upon the answer of one or more defendants within whose knowledge the facts charged specially or exclusively lie, or upon whom the gravamen of the charge rests; and this, too, where all the defendants are implicated in the same charge, and the answer of all can and ought to come in, if the plaintiff has not taken the requisite steps, with reasonable diligence, to 'x'expedite his cause. See the cases cited in the note to Adams, above referred to. In this case the appellee cannot be charged with any want of diligence in expediting the cause. But the Central Ohio Rail Road Company is a foreign corporation, and cannot be compelled to file an answer. An opportunity will be afforded to the plaintiff, in a proper case, to enforce an answer from all the defendants, before a motion will be heard to dissolve an injunction properly granted; but there can be no reason for affording such an opportunity as to defendants who are out of the jurisdiction of the court, and cannot be compelled to answer. Again, the answer of the Central Ohio Rail Road Company is not required for the purpose of discovery. None of the officers or members of the corporation are made defendants, as might have been done for that purpose; and it is not perceived what effect an answer from that company could have upon the right of the appellants to have the injunction dissolved. Where a discovery is required of a defendant who may be compelled to make it, the answer, though it majr not be evidence against a co-defendant, may yet properly have some effect in preventing or postponing a dissolution of the injunction.

4. As to the objection that the appellants’ answer was insufficient. This objection is answered by the rule that upon a motion to dissolve an injunction on bill and answer, the facts alleged in the bill and not denied by the answer, are taken to be true; which is the most that the appellee could obtain from a full answer. None of the officers or members of the Baltimore and Ohio Rail Road Company are made defendants, as they might have been, for the purpose of discovery. But the president of the company was examined as a witness, and answered all the interrogatories propounded to him by the appellee.

S. As to the objection that the appellants’ answer *was not verified by affidavit. A corporation cannot be sworn, and therefore must put in its answer under its common seal only. Story’s Eq. PI. § 23S. If the plaintiff wishes to have a sworn answer, he must make some of the officers or members of the corporation parties. The answer of a corporation not being verified by affidavit, is no evidence for the defendant, though responsive to the bill. But it at least has the effect of putting the allegation to which it responds in issue, and of imposing on the plaintiff the burden of proving it. This is, undoubtedly, its effect on the hearing of the cause; and it is not perceived why the same effect does not exist on a motion to dissolve. That it does, was decided b3>’ Judge Washington in Haight v. Proprietors of Morris Aqueduct, 4 Wash. C. C. R. 601. The case of Eulton Bank v. New York & Sharon Canal Company, 1 Paige’s R. 311, seems to be contra. But the circumstances in that case were peculiar. The case ■ of the Union Bank of Georgetown v. Geary, 5 Peters’ R. 99, tends to sustain the case in 4 Wash, supra. The difficulty in that case was in not giving to the answer of a corporation, under its common seal, the same effect as to the sworn answer of an individual. But the court inclined to adopt it as a general rule, that an answer not under oath |j.s to be considered merely as a denial of the allegations in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegation. Kven if it would have been improper to have dissolved the injunction in this case on the bill and answer only, it might still have been proper to have done so in the condition in which the case stood when the motion was máde.

It may be remarked, in reference to all of the' three last mentioned objections, that whether they are well or ill founded, it was error to refuse to dissolve the injunction if it was improvidently awarded.

^Having disposed of all the preliminary questions, I will proceed to consider whether, on the merits, the motion to dissolve the injunction was properly overruled.

Wheeling claims to have the acts complained of enjoined, because they are in violation of her rights; first, under the act of March 6, 1847; secondly, under the contract of July 6, 1847; and, thirdly, as a stockholder. And,

Hirst: Under the act of March 6, 1847.

Wheeling claims that under this act the benefits of the western terminus of the Baltimore and Ohio rail road are secured to her; that the appellants had no power to do, or were bound to .refrain from doing, any thing which might deprive her of any of these benefits; and that the acts enjoined would have that effect, and therefore are unlawful. On the other hand, the appellants contend that they have done every thing they were bound to do to secure to Wheeling the benefits of the western terminus ; that their interest and duty required them to connect at Benwood with the Central Ohio rail road, which terminated on the opposite side of the river at Bellair; that they were expressly authorized by the act to make such a connection; and that in doing the acts enjoined they were doing no more than was necessary to enable.them to effect that object. Ket us see what are the relative rights of the parties. And to enable us to do. so we must look to the act itself, and as far as may be-necessary, to the preceding acts in pari materia, and to the surrounding facts.

The first Virginia act on the subject of the road, the act of March 8, 1827, which re-enacted, with modifications, the Maryland charter passed in the preceding month, did not fix any definite terminus, but required that the road should not strike the Ohio lower down than the mouth of the Kittle Kanawha. *In the succeeding year an act was passed by Pennsylvania, authorizing the company to make the road through that state, on condition of making it, or a branch, to Pittsburg. Under the acts of these three states, the company had a broad river front, as they call it, extending from Pittsburg to the mouth of the Kittle Kanawha, in which to select a terminus. It seems they selected two, Wheeling and Pittsburg. But the time limited by these acts expired, leaving the work unfinished beyond Harpers Herry. In 1836, 1837 and 1838, other acts were passed by Virginia, assuming that Wheeling was to be the terminus, authorizing conditional subscriptions to the work by Wheeling and the state, and extending the period of its completion to 1843. But this period also expired, leaving the work unfinished beyond Cumberland.

Pennsylvania, it seems, was unwilling to renew the permission to make the road through that state, except on condition of making 'Pittsburg the terminus; and the company could get to the Ohio river at no other point but by' passing through the territory of Virginia, without passing through that of Pennsylvania. They accordingly made an application to the legislature at the session of 1843-’44 for the privilege of extending their road to the Ohio, without restriction as to terminus, except that it should be north of the mouth of the Kittle Kanawha, as in the original act of 1827. “This, (in the language of the learned counsel for Wheeling,) was the opening of the controversy between the company and Wheeling.” The application failed. It was renewed at the session of 1844-’45, and ag'ain failed.' But an act was then passed, (Sess. Acts, p. 69,) the first section of which authorized the company to construct their • road, in whole or in part, through the territory of this state, “so as to terminate and strike the Ohio river at the city of Wheeling;” and in the 17th section it was declared that “no part ?of this' act shall be so construed as to authorize or permit the said com- • pany to construct their said rail road, or any branch thereof, to any point on the Ohio river below the said city of Wheeling.” The act contained many other provisions objectionable to the company, and they rejected it. In 1845-’46 another act was passed, repealing some of the objectionable features of the act of 1844-’45, but leaving the provisions as to the route and terminus in force. Sess. Acts, p. 88. This act was not accepted. At the next session of the legislature, the act of March 6, 1847, was passed; which was accepted, (after the contract with Wheeling of July 6, 1847, was entered into). The terms of this act and the relative rights of the parties under it, are now to be considered.

The first section authorizes the company to complete their road through the territory of the state, so as to pass from a point in the ravine of Buffalo creek at or near the mouth of Piles’ fork to a depot to be established by said company on the northern side of Wheeling creek in the city of Wheeling, by such route as, upon minute estimates, &c., shall appear to be the cheapest upon which to construct, maintain and work said road. Provided that it should not be made to enter the ravine of the Ohio river at any point further south than the mouth of Pish creek: or at any point further south than Grave creek, if Wheeling would pay the excess of the cost of the latter over the former route.

The second section is in these words: “That to secure to the said city of Wheeling the benefit of the western terminus, all parts of the said railroad between the Monongahela river and said terminus, shall be opened for the transportation of freight and passengers simultaneously; and the aggregate charge for toll and transportation, upon freight and passengers respectively, shall be the same between Baltimore and *any point on said road within a direct distance of five miles from the Ohio river, as between Baltimore and Wheeling.”

The 6th section declares, “that the said company shall be subject to the provisions of the act of assembly passed on the 11th day of March 1837, establishing general regulations for the incorporation of rail road companies, with respect to that portion of their road or other improvements now or hereafter to be constructed within this commonwealth, so far as the same are X>roperly applicable;” and a proviso is added as to charges on way trade and travel.

The 9th section authorizes Wheeling to subscribe to the capital stock of the company such sum not exceeding one million dollars, and upon such terms as may be agreed upon between the council of said city and said railroad company.

By the 11th section, the act is to be accepted in six months, and the road to be begun in three years, and completed in twrelve.

By the 2oth section of the general rail road law above referred to, authority is given to the president and directors of a company, which is subject to that law, to make branches or lateral rail roads in any direction whatever, in connection with their rail road, not exceeding ten miles in length, &c. This provision is to be considered as much a part of the act of March 6, 1847, as if it had been embodied therein in totidem verbis, if it be “properly applicable.” The appellants contend that it is so applicable, and under it claim the right to make the connection at Benwood. On the other hand, Wheeling contends that it is not so applicable; at least to the extent of authorizing that connection. She does not deny that the provision is applicable to some extent; that it confers on the company the branching power. Indeed, the 4th section of the act of March 6, 1847, expressly recognizes the *existence of such a power. But she contends that it must be taken in subordination to the main intent of the act to confer on her the practical benefit of the western terminus ; and that it cannot be so exercised as to contravene that benefit: especially, that it cannot be exercised for the x^urpose of connecting with the Ohio river or the improvements on the other side, except at Wheeling. This is the main, if not the only hinge on which this controversy turns.

I am of opinion that the provision is applicable, and does authorize the connection in question. What was the state of things when the act was passed? Wheeling had desired not only that the road should run to her, but run and terminate in such a way as that it could make no connection with the river or improvements beyond it but in that city. The company had desired so to run and terminate the road as to be in a position to make the most favorable connections with those great highways. The legislature had favored the views of Wheeling, and passed the acts of 184S and 1846. But those acts could have no effect without the consent of the company. The road was to be made with their money, and would cost about six million dollars. They were unwilling to expend and risk so large a sum without more favorable terms than those acts presented, and therefore declined to accept them. The route to Pittsburg was still within their power; and some of the stockholders, it seems, desired to pursue that route. But a majority were still anxious to terminate the road at or below Wheeling. It very clearly appeared that if it passed through Virginia, it must terminate at Wheeling: and the company were willing to make it to Wheeling, provided they could pursue such a route as would place them in a position to make the connections they desired. There were two great rail roads then in a course of construction in Ohio, and approaching '*the river: The Central Ohio road passing through the centre of the state, and the Cincinnati and Marietta road passing through the southern part. The company desired to connect with both of these roads. They supposed that by running their road to the river at the mouth of Pishing creek, and thence up the river about forty miles to Wheeling, the object they had in view would be effected. They would then have it in their power to connect with those roads at any point or points in all that river front of forty miles, which the termination of those roads on the river might render necessary. They accordingly proposed to the legislature, at the session of 1846-’47, so to run their road. Their proposition was rejected, and the act of that session was passed, the terms of which have already been referred to. Wheeling was in favor of it; and her object was the passage of such an act as would be most apt to attain her views, and at the same time hold out sufficient inducements to its acceptance by the company.

In this state of things, it was important that the act should plainly express the intention of the legislature; that nothing should be intended which was not expressed, and nothing expressed which was not intended, in order that there might be no mistake on either side. When, therefore, the legislature by that act gave to the company the branching power without any express restriction, it cannot be fairly presumed that they intended to restrict it. If they had so intended, they ought and would have said so expressly. It was known that the company desired to make connections wherever they could do so to advantage; especially with the river and roads beyond it. And it was known that it might be necessary to connect with those roads below Wheeling,. should they terminate below that city. With this knowledge, the act was passed.

’ * Another important fact, tending to show that such a restriction as is contended for was not intended, is, that in the act of 1845, which was rejected by the company, the .branching power was given in precisely the same terms as in the act of 1847, but with an express restriction to prevent the road or a branch from striking the river below Wheeling. Why, then, was this express restriction in the act of 1845 left out of the act of 1847, if it was not by design; and because it was known that, with its insertion, the latter act would have shared the fate of its predecessors, and been rejected by the company.? We are irresistibly led to the conclusion, then, that the omission was by design.

It was doubtless the desire of the legislature, as well as of Wheeling and the company, that all the connections with the river and the improvements beyond it should be made in Wheeling. But the subject was not entirely within their control. The Ohio companies might terminate their works according to their pleasure, and would do so according to their interest. They were embarrassed; and want of funds might prevent them from reaching Wheeling. It was proper, therefore, that the appellants should be left free to make connections wherever necessity might require and the location of their road along the river might enable them. Wheeling, not being able to do better, was willing to incur this risk for the sake of the benefits she expected to derive from the road. It was expressly required to terminate at Wheeling: That benefit she would certainly obtain by its construction; the benefit of a direct and continuous rail way to one of the largest and most important Atlantic cities; the benefit of daily arrivals and departures of rail road trains from and to that city; and all the local benefits necessarily incident to the terminus of a great rail road. She desired benefits beyond these — the benefit *of connections between that and other roads within her limits. But she expected to obtain them by the advantages of her position, her wealth, trade, population and importance; which she hoped and expected would be sufficient to attract to her limits all connections which might otherwise have been made at some other point of the road within its limited river front of ten or twenty miles. Ror these expected benefits the company did not stipulate by the acceptance of the act, except to the extent of a compliance with its terms. It does contain terms which were intended to promote the attainment of these benefits.. But these very terms plainly indicate that the company would have the power to make connections below Wheeling, if necessary. The first section, requiring the road not to enter the ravine of the Ohio' lower down than a certain point, shows that Wheeling was to incur the risk of intermediate connections. The second" section shows the same thing. In, requiring all parts of the road between the Monongahela and Wheeling to be opened for transportation simultaneously, and the aggregate charge for toll and transportation, to be the same between Baltimore and any point on the road within five miles of the Ohio river as between Baltimore and Wheeling, it was intended to give to Wheeling these advantages in attracting connections to her limits, but not to prohibit them elsewhere.

These being the relative rights of the parties under the act of March 6, 1847, have the rights of Wheeling been violated by the appellants? They made the road within the time and along the route prescribed by the act. It terminates in Wheeling, to and from which all the through trains run, and where all the depots and other structures, suitable to the terminus of such a road have been erected, and where a large force of officers, clerks, mechanics and laborers are constantly employed. The requisitions of the 2d section have *'beert strictly complied with; or, at least, there is no complaint in that respect. And the only complaint on the part of Wheeling, is of the connection at Benwood. Is that a violation of her rights under the act? I think not. I think they had a right to make it, under their- branching power. They deny that the necessity which has arisen to make it was the result of any act or course of policy on their part: And in support of this denial, they refer to and exhibit a letter of their late president, Mr. Swann, in reply to one from the president of the Central Ohio rail .road of December 18, 1849, made an exhibit with the bill, in which the writer says, “This company have no intention of making a terminus at any other point than the city of Wheeling: nor could I advise you to locate your work under any expectation of this company doing more than making tljeir road under their Virginia charter, to its terminus on the Ohio river at that city. The whole road from the Ohio river to the city of Wheeling will be put under contract at the same time, and pressed to completion, so as to be opened simultaneously throughout its entire lengtfy. ’ ’

It appears, from the evidence of Mr. Harrison, the present president, and Mr. Done, master of transportation, that the company had no agency, directly or indirectly, in the selection of the route of the Central •Ohio road, or in causing it to stop at Bell-air. These witnesses say they were anxious to connect with that road through Wheeling, and endeavored to effect that object, but -the president of that road refused, and insisted on the connection between Benwood and Bellair. The appellants, then, had to choose between the alternatives of that direct connection and the circuitous and uncertain one through Wheeling ; in the latter case, subjecting passengers to the inconvenience of an additional journejr of eight miles, one-half of it by water or in an omnibus, according to the state of navigation, *and to the danger of being delayed on their way by not arriving in time to make the connection; and subjecting themselves, in their competition with other great rival (roads, to the disadvantage of such a break. They chose the former, as it was their interest, and I think their right to do. Suppose the Central Ohio road had terminated opposite Moundsville, at the mouth of Grave creek, where the Baltimore road first enters the ravine of the river, and ten or eleven miles below Wheeling, would a connection at that point have been unlawful? It is necessary to maintain that it would, in order to carry out the principle contended for by Wheeling in regard to the connection at Benwood. And so also, if the Cincinnati and Marietta road should reach and terminate at a point opposite Moundsville.

If the company have the right to make the connection at Benwood, it is their right and duty to provide all proper facilities to effect the object in a manner most- convenient for their travel and trade; and there Is nothing in the manner of making the connection which can give Wheeling a right, under the act of 1847, to complain.

The next question to be considered is as to her rights:

Secondly: Under the contract of July 6, 1847.

So much of what has been said under the preceding head is applicable to this, that it will not be necessary to say much more. I am of opinion that there is nothing in this contract which can restrain the right to make the connection in question any more than in the act of 1847. The contract was obviously designed on the part of Wheeling to induce the company to accept the act, and prosecute at their earliest convenience the construction of the road. It consists almost entirely of terms to be fulfilled on the part of Wheeling. She agreed, 1, to grant ten acres of land *for a depot; 2, to secure the right of way within her limits; 3, to subscribe five hundred thousand dollars to the stock of the company; 4, to waive, sub modo, the control given her by the act of 1847 over the selection of routes between Fish creek and Grave creek; and 5, to be bound by the contract so soon as the stockholders of the company should accept the act of March 6, 1847, and agree to prosecute, at the earliest convenience of the company, the construction of the road from Cumberland to Wheeling. The acceptance of the act and early prosecution of the work seem here to be the only consideration for the stipulations made on the part of Wheeling; and this is not affected by any thing that follows in the contract; which contains four other paragraphs: The first of which provides for the return to Wheeling of the amount paid on account of her subscription and cost of depots and interest, in case the road should not be made in time. The second is an agreement on the part of the committee of the company to convene a meeting of the stockholders at as early a day as practicable, and to recommend to them the acceptance of the conditions above referred to. The third is in these words: “It being the intention of the parties to this agreement, among other things, to secure to the city of Wheeling the practical benefits of the western terminus of the Baltimore and Ohio rail road, according to the provisions of the said law.” The fourth declares the understanding to be, that the necessary surveys and estimates should be made, and the route decided upon, as soon after the ratification of the agreement by both parties as the company should find convenient.

If any additional obligation is imposed on the company, it is by the third of the four paragraphs above mentioned. It is difficult to perceive the precise purpose for which that paragraph was inserted. Without making any speculations on the subject, it is enough *to say that, in my opinion, it imposes no additional obligation on the company. The words “according to the provisions of the said law,” with which the paragraph closes, expressly limits the security referred to, to a compliance with the provisions of the law. It therefore only raises the question which I have already fully considered under the preceding head. Certainly the company, unwilling to accept the act without further inducements from Wheeling, would not have agreed to surrender a right secured to them by that act; especially a right so important to enable them to make the connections they had so long desired. Wheeling knew they desired to make them, and might have an opportunity of doing so at any point in all their river front. She knew they had the branching power, without any express restriction in the act. And if she desired to restrain them, she ought to have done so expressly in the contract. Had she insisted on such a restriction, it would doubtless have resulted in a rejection of the act. The strict rule of construction contended for in regard to charters of incorporation, certainly do not apply to a contract made between two corporations. The waiver by Wheeling of her control over the selection of routes, (thus giving the company, as they then supposed, the right to enter the ravine of the river as low down as Fish creek, twenty-eight miles below Wheeling, instead of Grave creek, eleven miles below,) serves strongly to show that, instead of giving up the right to make favorable connections below Wheeling, the company desired and intended by the contract to enlarge that right, by extending their river front. That such was their desire and intention, and such their understanding of the contract, plainly appears from the report, of the committee, (made in pursuance of a stipulation contained in the contract,) recommending the acceptance of the act and ratification of the contract, *to the stockholders. Upon that recommendation the act was accepted and the contract ratified.

It now only remains to' be considered, whether the rights of Wheeling have been violated:

Thirdly: As a stockholder.

The ground on which she bases her claim to relief as a stockholder is,' that the acts enjoined are unlawful; and therefore any stockholder of the company may have an injunction to restrain them. Some of these acts are said to be unlawful, without respect to their effect on Wheeling as the terminus; and others, only because in contravention of the purposes of the law to sefcure to her the benefits of the terminus. I have already disposed of the latter. The former only remain to be considered under this head. As enumerated by the counsel for Wheeling, they are, 1. The construction of a pier in the bed of the river, with a railway track upon it; 2. The contract with the Central Ohio Rail Road Company; 3. The transportation of freight and passengers to and from the state of Ohio by ferriage, &c. ; and 4. The loan to that company. The appellants deny that they have violated, or intended to violate, the law in any of these respects. But I deem it unnecessary to enquire how far the appellants are implicated in these acts, or whether the said acts or any of them be in themselves unlawful or not; as I am decidedly of opinion that, even if they be so, the claim of Wheeling as a stockholder to have them enjoined cannot be maintained. Undoubtedly there are cases in which a stockholder may be entitled to this mode of relief. Cases, for instance, in which the property or powers of the company are about to be perverted to a purpose wholly or materially different from that which was designed by the act of incorporation. If a company incorporated to make a rail road should be about to make a canal; or, incorporated to make a road from A to B, should be about to make one from A to C. These *'would be plain. and palpable violations of the charter, and would be restrained at the suit oí a dissatisfied stockholder.

The cases relied on by the counsel for Wheeling in support of her claim as a stockholder, seem to be of this kind. In Beman v. Rufford, 6 Eng. Law & Eq. R. 106, one rail way company gave up the management of its line to another. Rord Cranworth, V. C., who decided the case, said, “In my opinion, that is delegating the functions which the legislature has given them to other parties; which they have no possible right to do. For the security of the public, there are a vast quantity of duties imposed on the‘company, ’ ’ &c. But even in that case, he said, “I only restrain them from carrying into execution that portion of it, (the agreement between the two companies,) which we call, for want of a better expression, irreparable injury; that is, the expenditure of money which it will be impossible, perhaps, ever to get back again.”

The suit there was brought by some of the stockholders in behalf of themselves and the others. Winch v. The Birkenhead, &c., Railway Co., 13 Id. 506, decided by Turner, V. C., was a similar case; and the right to relief by injunction was sustained on similar grounds. There, too, the suit was brought by one of the stockholders in behalf of himself and all the rest. Even in cases of this kind, relief by injunction has been very ' cautiously administered; and has been denied to parties in consequence of their - acquiescence in the illegal act of the company, or other peculiar circumstances. Graham v. Birkenhead, &c., Co., 6 Id. 132, decided by Rord Cottenham, and Ffooks v. The London, &c., Co., 19 Eng. Law & Eq. R. 7, decided by Stuart, V. C., were cases of this class. Some of the observations of the court in those cases apply very forcibly to this; but I will not prolong my opinion by repeating them.

In this case there has been no perversion of the property or powers of the company to a purpose ^wholly or materially different from that which was designed by the act of incorporation. The connection at Benwood seems to have been required by the interest of all the stockholders, and was in direct furtherance of the design of their work to form a part of a great national thoroughfare. Every stockholder, except Wheeling, must have been in favor of that connection ; and Wheeling would doubtless have been so, if her relation to the subject had been only that of a stockholder. She has other interests to subserve, which prompt her to endeavor to avail herself of her position as a stockholder to arrest, by- injunction, the contemplated connection, though at the imminent risk of loss to all the other stockholders, as well as of great inconvenience to a large portion of the traveling public. Under such circumstances, can she be entertained in a court of equity in her character of stockholder, merely because, in the manner of making the connection, the navigation of the Ohio river may be obstructed, the franchise of some neighboring ferry owner may be interfered with, or the powers of the corporation may, in some other respect, be exceeded or misused. I think not.

I am, therefore, for dismissing the appeal, as improvidently allowed, so far as it is from the order of the Circuit court in the proceeding for contempt; for reversing, with costs, the order of the judge in vacation refusing to dissolve and continuing the injunction; and for dissolving the said injunction.

ALLEN, P., and SAMUELS, J., concurred in the opinion of Moncure, J.

DANIEL and LEE, Js.,

concurred in the first, second and third questions considered by MONCURE, J. But on the merits they dissented.

Decree reversed.  