The act did not confer the power to consolidate, but merely prescribed the manner in which the power, being assumed to exist, should be exercised.

By the very terms of this act, it is preservative, and not destructive. The consolidated company shall have all the rights, powers, privileges, immunities, and franchises conferred and imposed by the laws of this state upon such companies so consolidating, or either of them. The plaintiff company finds its muniment of title for its creation and powers in the laws of this state passed in 1865 and 1866,-its old charters, namely, and not in this section 1268 of the railroad consolidation act. It finds that title, and all its other belongings, preserved to it, and some additional grants, perhaps, in this railroad consolidation act; but one had as well say that a substance chemically preserved in alcohol is created by the alcohol as to say that this plaintiff is created by this consolidation act. It is the same old creation in a new form, and was, beneficially to the public and the companies, presumably, in the wisdom of the legislature, intended to be preserved for the very purpose of continuing intact all its specially granted privileges, the more valuable now, and the more necessary to be preserved, because they are special, and can be no longer created anew, as special grants. This was, in my opinion, the sole purpose of this act. It was applied by the act of March 26, 1887, c. 189, to street-railroad companies as follows:

"CHAPTER 189.

"An act to extend section 1263, and the sections following, down to and including section 1272, of the Acts of Tennessee, as compiled by Milliken & Vertrees, to street-railroad companies.

"Section 1. Be it enacted by the general assembly of the state of Tennessee that the provisions for the consolidation of railroads contained in section 1263 and the sections following, down to and including section 1272, of the Acts of Tennessee, compiled by Milliken & Vertrees, said acts referred to in the caption,-be hereby declared to embrace and extend to any street-railroad corporations existing in this state, and to give every such street-railroad corporation the power to consolidate itself with any other such street-railroad corporation, where the road shall connect with or intersect the road of such a streetrailroad corporation, or any branch thereof, in accordance with said sections: provided, that nothing in this act shall be construed to renew or extend the charter of either of said street-car companies in favor either of the original or consolidated company; and provided further, that nothing in this act shall be taken or construed to have any effect whatsoever upon any litigation now pending between the state and either of said street-car companies, or between the municipality in which the same is located and either of said companies: provided further, that nothing contained in this act shall be construed to in any way enlarge or control the rights that towns and cities now have by existing laws over their streets, alleys, or sidewalks, without their consent.

"Sec. 2. Be it further enacted that consolidations of such street-railroad companies made previous to the passage of this act are hereby ratified and confirmed to the extent of the provisions of the said sections of said Code. "Sec. 3. Be it further enacted that this act take effect from and after its passage, the public welfare requiring it.

"Passed March 26, 1887."

This act adds nothing to, nor takes anything from, the other, and is quite unimportant to this controversy, although it has a somewhat curious phraseology in its provisos. These only more

forcibly, it seems to me, indicate an intention to preserve, and not destroy; to keep alive, and not to kill,-the old charters, although they do also carefully abstain from enlarging or diminishing the pow ers and privileges beyond the bare necessities of preservation. there is nothing here to show any intention of bringing the old charters under the dominion of the legislature in the matter of altering or repealing those charters. This ends the legislation, and the argument upon it.

So far I have considered these laws without reference to the adjudications cited in the argument of counsel, but I find no constitution like ours, and no case like this. Undoubtedly the supreme court has, in a large list of cases, often decided that by consolidation the old constituent companies have been destroyed, an entirely new corporation created, and the effect was to let in the new constitution, and restore to the state that dominion over its taxing power which had been lost by a charter contract of exemption. Railroad Co. v. Berry, 113 U. S. 465, 5 Sup. Ct. Rep. 529; Railroad Co. v. Palmes, 109 U. S. 244, 3 Sup. Ct. Rep. 193; Railroad Co. v. Maine, 96 U. S. 499; Railroad Co. v. Georgia, 98 U. S. 359. On the other hand, the same court has held that this result did not at all follow in certain other cases, where the old corporations and their charters remained in force for the preservation of their immunities, etc., against the effect of dissolution and consolidation. Tomlinson v. Branch, 15 Wall. 460; Railroad Co. v. Georgia, 92 U. S. 665. Other cases might be cited, but these two are sufficient. They both hold that it is a question, in every case, of the legislative intent, to be gathered from the circumstances in each case, as shown by the legislation under which the consolidation takes place; and the former of the cases holds that the presumption is that the consolidated company preserves the original charter rights and burdens intact, unless the contrary is expressed.

Counsel for the plaintiff, since the argument, by supplemental brief, has undertaken to maintain our federal jurisdiction under the fourteenth amendment, contending that it is not within the competency of the state to destroy its property by legislative act. Possibly it is a full answer to this to say that such a holding would utterly nullify the constitutional or special reservation in a charter, of the power to alter or repeal it. If it may not destroy by repealing, there might not be much value in the power to repeal, and possibly the effect would be that by the charter contract the incorporators submitted to this tremendous power. Possibly, again, there might be à constitutional obligation, if repeal did take place, to compensate the incorporators by paying the value of the property so destroyed; but that is another question, and not a federal question at all, since nothing in the federal constitution requires such compensation. But I do not care to express any opinion on this fourteenth amendment, in its relation to this case, because I find our jurisdiction amply supported by what has been already said of the contract obligation clause in its relation to the case.

Finally, on this question of our jurisdiction, it must be noticed that we do not now finally decide these questions, or any of them, but only provisionally, for the purpose of this application for a preliminary in

junction; and however they may be finally decided, whether in accordance with the views here expressed, or contrary to them, it is sufficient to say that the case fairly presents a federal question in presenting these for decision. I have no longer any doubt about our jurisdiction of this controversy, and this brings us to the question of its merits, which can be very briefly disposed of upon perfectly familiar principles.

That the plaintiff company has, by grant from the state, a right to occupy and use, in its business, any street in Memphis, the use of which it has not abandoned or surrendered by contract or otherwise, and that at the time it was obstructed by the city it had the right to so use West Court street, now in controversy here, by such grant, admits of no doubt whatever. If I am correct in the views expressed as to the effect of the constitutional provisions and the legislation we have been considering, there is just a little doubt that neither the state nor the city, acting under any delegated authority from the state, could take away this right of using West Court street by forbidding the plaintiff company to construct its tracks, as was done by the city. All acts of the legislature or municipal ordinances authorizing, directly or indirectly, such a prohibition, would be null and void, as against the federal constitution, which forbids such an impairment of its charter contract to construct, maintain, use, and operate street railways "on all or any of the streets in the city of Memphis." If the city charter confers this power of prohibition, it is to that extent void; if the municipal council assumes the power, and passes an ordinance authorizing the prohibition, as it did on the facts of this case, that ordinance is void; and if, under the municipal 'charter or the ordinances of the city, the municipal authorities as sumed the power of prohibition as one belonging to their police control, such authority would be likewise void. The city has by its ancient and modern charters, to be sure, the right to regulate and control this use by the street-car company of the city streets. The franchises were granted subject to that power. And this would have been so without any special grant of the power of regulation to the city, and that power, in its more plenary quality, entered into the charter contract with the company, and became a part of it. Under it the city may, by ordinance,-possibly by contract, or both, and possibly without either,-under mere police oversight, regulate and control this use of the street in a thousand ways, such as determining the kind of tracks, their location in the street, their connections, and the like; the running of the cars, and the like; the joint or simultaneous use by other street-railway or transportation companies, and the like; the use by others, such as water and gas companies, at the same time; the relation of abutting owners to the use; and, indeed, all matters falling reasonably within the police power of regulation and control. But regulation cannot be enlarged into a power of prohibition, nor under it can the city usurp the state power of creating franchises or taking them away. If it has such power of creation or withdrawal, independently of the power of regulation and control, the grant of it is, as to this plaintiff company, null and void. The plaintiff company can be deprived of its right to use any or all the

streets only by its own consent, express or implied; and we come now to that feature of this controversy, and it is of easy solution.

It is contended that the street-car company has abandoned the use of West Court street, upon the facts of this case. It is decided nowhere so well as by our own supreme court that, "to constitute an abandonment or waiver, there must be a clear, unequivocal, and decisive act of the party, showing a determination not to have the benefit in question, with full knowledge of his rights in the premises." Meigs, Dig. tit. "Abandonment." Breedlove v. Stump, 3 Yerg. 257; Gentry v. Gentry, 1 Sneed, 87; Traynor v. Johnson, 1 Head, 52; Masson v. Anderson, 3 Baxt. 290. Tested by this rule, there is not an unequivocal act of the plaintiff company shown by this record, in my judgment. Moreover, there is one fact which makes these acts, each and every one of them, perhaps less clear, more equivocal, and altogether indecisive of any intentional abandonment than any of them would be without that fact, the two-years contract, namely. By this the company had two years to re-establish itself upon the streets with electrical power instead of animal power, and West Court street was one of those included in the contract. Until those two years shall expire, any fact relied on to show abandonment should be more clear, unequivocal, and decisive than otherwise might be required, because the parties have fixed that time to determine what state of mind the plaintiff shall take in the matter of occupation and re-establishment upon that and all other streets. If it were possible to speak into existence such an establishment, the street-car company might have delayed all action until the last day, and the last minute of the day, and then saved itself by speaking the words to create the change from animal to electric power before the two years expired. The delay could not have been treated as evidence of abandonment if actual occupation should come, however late, within the two years. This is what the limitation as to time meant, and it is by contract the street-car company has two full years within which to make up its mind finally; and it might in the mean time change its mind as often as it chose, so long as, by some decisive act, it did not surrender the street, such as a specific consent to leave the street, expressly manifested for that purpose. That would be abandonment, understandingly, by clear, unequivocal, and decisive action. Scarcely anything less would be evidence of it, owing to this very limitation of time.

The fact that the company had, before the change from animals to electricity, made only a limited use of West Court street, as a spur track for temporary stoppage of cars, turntable uses, and the like, does not preclude it now from extending that use to the full extent of its inviolable grant from the state at any time within the two years allowed for the purpose under the contract with the city. It was a concession to the city to impose this limitation of time upon itself, and in that light its conduct will be most favorably construed for itself on this question of abandonment and finality of decision. Finality will not be imposed earlier than the time at which the two years expire, when, but for this concession, longer time might reasonably have been claimed before any implications based on lapse of time should be drawn against it in a question of abandonment. Similarly,

the fact that this spur and turntable use was abandoned for a turnout contrivance higher up town, and on Main street, itself does not show unequivocal abandonment of all use of West Court street. It might tend to show-somewhat feebly, perhaps abandonment of that street for turntable and turnout uses; but, as both the Main street contrivance and the West Court street contrivance might both be useful for that purpose, it would hardly come up to the rule of unequivocal manifestation, even of that limited abandonment. Surely, it does not manifest abandonment of the more important and larger use now proposed, of making a loop track, for the convenience of a change of direction of travel, and the concentration of terminal facilities for taking on and letting off the travelers.

So of the fact that, in the process of construction of the tracks on Main street, West Court street was passed, and no provision made at their junction for a track into West Court street, as was done at the junction of Jefferson street and other streets; all this is equivocal, at least. Jefferson is a. long street, containing an extensive route of travel; West Court, a very short street,-only two or three hundred feet,-not adapted, by itself, for a route of travel, like Jefferson street, but well adapted for a loop track, such as is now proposed, or a turnout track, such as was there before. The company may not have made up its mind to put in a loop track when it reached West Court street, nor whether it wished to put in turnout contrivances, nor whether it wished to go down to the river, or the like; but nothing in this contract required it to make up its mind as to these things when it reached West Court street, but it had two years for that purpose,-two entirely different limitations as to time; the one imposed by contract, the other not at all. If Main street, in its adjacent parts was constructed, as to tracks, pavements, etc., without reference to a possible change of mind within the two years allowed for that purpose, the only result is that it will cost the company more to construct on West Court street than it might have cost otherwise. This may show bad business management, but it does not show abandonment of the right to use West Court street for any purpose within the original grant, and its supplements, at any time within the two years.

So, too, as to the bonds deposited as collateral security to enforce the completion of the system and a compliance with the contract. Naturally the company would desire to recover the bonds at the earliest possible moment. Naturally, too, the city might be generously inclined to give them up as soon as possible. Under this impulse either or both may have disregarded the nonoccupation and incompleteness of construction as to West Court street; and in a matter so small as that, in relation to the vast establishment which had been so speedily constructed, the disregard would have been quite immaterial and harmless. This possibility makes the act equivocal, to say the least, on the question of abandonment. Again, it is so in view of a possibility that the company concealed its purpose to occupy West Court later on just to get back the bonds earlier. This would have been immoral, perhaps, but not a surrender of West Court street. Neither would such surrender be imposed as a penalty for the immo