John F. Dillon, Wager Swayne, and A. L. Williams, for plaintiffs in error.
W. A. Johnston, W. H. Rossington, and C. A. Seward, for defendants in error.
Each of these writs of error brings up for review an order of the circuit court remanding a case to the state court from which it had been removed, and the two cases may properly be considered together. The material facts are these:
The Leavenworth, Pawnee & Western Railroad Company was incorporated by the legislature of the territory of Kansas in 1855, to build a railroad from the west bank of the Mississippi river, in the town of Leavenworth, to or near Fort Riley, and from thence to the western boundary of the territory, which was the east boundary of Utah, on the summit of the Rocky mountains. 10 St. 283, c. 59, § 19. In 1857 this act was amended so as to authorize the construction of a branch from some favorable point on the main line to some point on the southern boundary of the territory. Where an easy connection could be made with a line of road extending to the Gulf of Mexico, and also of a branch to the northern boundary of the territory. The company was organized under these acts in 1857, and before January 1, 1862, had located its line from Leavenworth to Fort Riley, and had, to a large extent, secured its right of way and depot grounds.
On the first of July, 1862, the first Pacific Railroad act was passed by congress, gress, incorporating the Union Pacific Railroad Company, and providing for government aid in the construction of the several roads brought into the system, the Atlantic and Pacific coasts. 12 St. 489, c. 120. By section 9 of this act the Atlantic and Paciflc coasts. 12 St. 489, c. 120. By section 9 of this act the Leavenworth, Pawnee & Western Railroad Company of Kansas was authorized to construct a railroad and telegraph line from the Missouri river, at the mouth of the Kansas river, on the south side thereof, so as to connect with the Pacific Railroad of Missouri, to the point in the territory of Nebraska then established as the eastern terminus of the Union Pacific road. Provision was made for government aid to this company in all respects like that to the Union Pacific. Section 16 is as follows: 'That at any time after the passage of this act all of the railroad companies named herein, and assenting hereto, or any two or more of them, are authorized to form themselves into one consolidated company. Notice of such consolidation, in writing, shall be filed in the department of the interior, and such consolidated company shall thereafter proceed to construct said railroad and branches, and telegraph line, upon the terms and conditions provided in this act.' The Leavenworth, Pawnee & Western Company accepted the provisions of this act, and was thereafter designated as the Union Pacific Railroad Company, Eastern Division. By the act of July 2, 1864, c. 216, § 12, (13 St. 361,) the company was required to build its railroad from the mouth of the Kansas by way of Leavenworth, or, if that was not deemed the best route, to build a branch from Leavenworth to the main stem at or near Lawrence. This act also made provision, by section 16, for the consolidation of any two or more corporations embraced in the system, upon such terms and conditions as they might agree upon, not incompatible with the laws of the states in which the roads of the companies might be.