The defendant railroad companies, in their motion to dissolve the temporary injunction, urged as grounds thereof, among others, that the injunction imposed a direct and unnecessary burden upon, and was an interference with, interstate commerce, and an interference with the carrying of United States mail. To those grounds the court did not apparently respond, and the supreme court did not refer to them in either of its opinions.
Counter contentions are urged. Plaintiffs in error contend that the Federal questions set up by them were evaded. Defendants in error contend that such questions were not involved and are not now presented for consideration.
The opinion of the supreme court on the first appeal was very elaborate, and we can only give a brief summary of the propositions decided. The court gives a summary of the facts of the bill, the averments of the petition to the commission, and the terms of its order, and says that, 'waiving minor considerations not sufficiently developed by the proof,' and 'passing at once to the very heart of the matter,' the case divided into two main branches:
'1. What is the true interpretation to be given § 187 of our Constitution, and has it any application to the facts of this litigation? 2. What are the legal rights of the citizens of the town of Pontotoc and the duties of the appellees as to the narrow-gauge road which was in use and active operation before and at the consolidation hereinbefore referred to and at the date of the leasing of its property by one appellee to the other?' Under the first branch the court decided that appellants (defendants in error here) could, under the facts of the record, be 'afforded no relief by the language of intendment of § 187 of the Constitution.' This branch of the case, therefore, needs no further consideration.
As elements in the discussion and decision of the second branch of the case, the court said that had there been no consolidation between the Gulf & Chicago Railroad Company and the Gulf & Chicago Railway Company, and the latter company had constructed its road over the route and in the direction specified in its application for incorporation, it would inevitably have been a parallel and competing line with the narrowgauge line then in existence, and the consolidation of the roads would not have been permitted. 'More than this,' it was said, 'an express grant of power by the legislature for the two companies to consolidate . . . would have been void, as being in contravention of the general statutory inhibition against consolidation or purchase of competing lines of railroads, which cannot, without violating § 87 of the Constitution [of the state], be suspended 'for the benefit of any individual or private corporation or association." And to sustain this proposition Yazoo & M. Valley R. Co. v. Southern R. Co. 83 Miss. 746, 36 So. 74, was cited. It was deduced from § 3587 of the Code of the state of 1892, that the statement in the petition that the roads were 'in no way parallel or competing lines' were statements of jurisdictional facts, 'upon the existence of which depended the power of the corporations to consolidate.' And following Lusby v. Kansas City, M. & B. R. Co. 73 Miss. 364, 36 L.R.A. 510, 19 So. 239, the court held that the Gulf & Chicago Railroad Company was without power to abandon or relocate any portion of its line, 'except on the score of 'imperious necessity." An exception, it was said, not suggested by the facts of this record. These restraints and duties, it was further said, came to the consolidated corporation.