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that of the other, in which case the latter is not dissolved; ' although the enabling act may refer to the merger as a “consolidation." 2

already existing. Nor is it a necessary inference from the provision of the act requiring the board of directors of each company to certify the union and consolidation to the gov ernor of the State that the union was intended to be a surrender of the charter of both companies, and the acceptance of a new charter. There were sufficient reasons for that requirement without the large inference attempted to be drawn from it. They were that it might appear in the office of the secretary of state that the Macon company was no longer in existence and that the capital stock of the Central company had been increased."

§ 339. The same subject continued. But consolidation does not necessarily work a dissolution of either company.3 Dissolution of the old companies is not the necessary effect in any case, unless the governing statute so states. Even when so enacted, the consolidation does not work an entire dissolution of the constituent companies. For when for all other It is that upon the union and consolidation the capital stock of the Central company shall not exceed the amount of the authorized capital stock thereof and the present authorized capital of the Macon company added thereto. This refers plainly to the corporation which was contemplated should exist after the union and consolidation of the two companies. The act contemplated and authorized no such union and consolidation as should work a surrender of their charter by both of them and the creation of a new company. At most it intended a merger of the Macon company into the other, a mode of transfer of that company's franchise and property and a payment therefor with stock of the Central company. It is of no importance to the inquiry whether a new corporation was created by the union and consolidation, that the Central acquired under the act new and enlarged powers as well as new stockholders. It was authorized to own and operate a railroad over the route of the acquired road, and to operate it as its own. It was also authorized to increase its capital stock. But the gift of new powers to a corporation has never been thought to destroy its identity, much less to change it into a new being. Such a gift is a grant of corporate existence. It assumes corporate life

1

Philadelphia &c. R. Co. v. Maryland, 10 How. 376.

2 Central R. Co. v. Georgia, 92 U. S. 665.

3 Railroad Co. v. Georgia, 98 U. S. 359, 362; Lightner v. Boston &c. R. R. Co., 1 Low, 338, 340.

4 Edison Electric Light Co. v. New Haven Electric Co., 35 Fed. Rep. 233. 5 McMahan v. Morrison, 16 Ind. 172; Fee v. New Orleans Gaslight Co., 35 La. Ann, 413; State v. Sherman, 22 Ohio St. 411; Hamilton Ins. Co. v. Hobart, 2 Gray, 543; Com. v. Atlantic &c. R. Co., 54 Pa. St. 9; Ridgway Township v. Griswold, 1 McCr. 152, 153, per Dillon, J.; Tomlinson v. Branch, 15 Wall. 460; Clearwater v. Meredith, 1 Wall. 25.

purposes the original corporations have been dissolved by a consolidation, there remains a qualified existence for the purpose of winding up its affairs,' and as we have seen, stockholders in the old who do not enter the new are entitled to withdraw their shares of the capital stock and may enjoin till they are secured to them. It may be that the consolidation of two corporations, or amalgamation, as it is called in England, if full and complete, may work a dissolution of them both, and its effect may be the creation of a new corporation. Whether such be the effect or not, must depend upon the statute under which the consolidation takes place, and upon the intention therein manifested. If, in the statute, there be no words of grant of corporate powers, it is difficult to see how a new corporation is created. If it is, it must be by implication; and it is an unbending rule that a grant of corporate existence is never implied. In the construction of a statute every presumption is against it."

§ 340. Rights of consolidated companies. In New York it is enacted that the consolidated company, in addition to the general powers of corporations, shall enjoy the rights, franchises and privileges possessed by each of the constituent companies, subject to the restrictions, liabilities, duties and provisions imposed by law, so far as the same may be applicable to the purposes for which it shall have been organized and expressed in the agreement for consolidation, and may prosecute or carry on any kind of business which each of the consolidating corporations was authorized by law to conduct." Independently of statutory regulation, it is well settled that

1 Edison Electric Light Co. v. New Haven Electric Light Co., 35 Fed. Rep. 233.

2 State v. Bailey, (1861) 16 Ind. 46; s. c. 79 Am. Dec. 405; Lauman v. Lebanon &c. R. Co., 30 Pa. St. 42; s. c. 72 Am. Dec. 685; McCray v. Junction R. Co., 9 Ind. 358.

Central R. &c. Co. v. Georgia, 92 U. S. 665, 670. Acc. Wabash &c. Ry. Co. v. Ham, 114 U. S. 587, 595; Railroad Co. v. Georgia, 98 U. S. 359.

4 N. Y. Laws 1890, c. 567, §15. And in England a similar statute provides that in every case of amalgamation, the undertaking, railways, harbors, navigations, ferries, wharfs, canals, works, real and personal property, powers, authorities, privileges, exemptions, rights of action and suits, and all other the rights and interests of the dissolved company, shall, subject to the contracts, obligations, debts, and liabilities of that company, become at the time of

where two or more companies form by union or consolidation a new or consolidated company, the latter unless restricted by the laws under which the consolidation takes place, succeeds to and possesses the franchises, rights, privileges, and immunities of the several companies from which it is formed.1 Accordingly, it is said that "where a new corporation is formed out of two or more previously existing corporations, and by the act creating it is to enjoy and have all the powers, privileges and immunities possessed by each of the corporations whose union constitutes such new corporation, the new corporation will have privileges, powers and immunities which they all (i. e., every one of them all) had, and it will not have those special powers, privileges and immunities which some had and some did not have." Where the act of consolidation provided that the new company should, "for its government, be entitled to all the powers and privileges, and be subject to all restrictions and liabilities, conferred and imposed" upon another company, the phrase, "for its government," is held to have been intended, not as a limitation of its powers, but for its regulation and control. The consolidation of several corporations into one creates a new corporation, the rights of which are dependent on the laws governing corporations at the time of the consolidation, and on the act

amalgamation, and by virtue of the amalgamating act, vested in the amalgamated company, and may and shall be held, used, exercised and enjoyed by the amalgamated company in the same manner and to the same extent as the same respectively at the time of amalgamation are, or if the amalgamating act were not passed might be, held, used, exercised, and enjoyed by the dissolved company. 26 & 27 Vic. ch. 92, § 38. The same act makes all special statutes relating to or affecting the dissolved applicable to the amalgamated company unless repealed by the special act authorizing the amalgamation. 26 & 27 Vic. ch. 92, § 38.

1 Zimmer v. State, 30 Ark. 677, citing Baltimore v. Baltimore &c. R. Co., 6 Gill, 288; s. c. 48 Am. Dec. 531; Tomlinson v. Branch, 15 Wall. 460. Acc. Tennessee v. Whitworth, 117 U. S. 147; Green County v. Conness, 109 U. S. 104; Indianapolis &c. R. Co. v. Jones, 29 Ind. 465; s. c. 95 Am. Dec. 654; Miller v. Lancaster, 5 Coldw. 514; Paine v. Lake Erie &c. R. Co., 31 Ind. 283; Cooper v. Corbin, 105 Ill. 224.

2 State v. Maine Central R. Co., (1876) 66 Me. 488, 514, per Appleton, C. J.

139.

Tennessee v. Whitworth, 117 U. S.

authorizing it. The new company may, of course, mortgage the entire property acquired by consolidation.2

§ 341. Public rights and duties of the new company.The new company must perform all the public obligations of the old, as for instance, the obligations of a common carrier, and the purchasing or consolidated company becomes subject to restrictions upon charges for transportation, as to that part of its traffic which is conducted over the purchased road.* This is provided by a statute in New York, which declares that nothing in this act contained shall be so construed as to allow the consolidated company to charge a higher rate of fare per passenger per mile upon any part or portion of the consolidated line, than is now allowed by law to be charged by each existing company respectively. And in England the same tolls are to be calculated and imposed at such rate as if the amalgamated railways had originally formed one line." As though in consideration for undertaking the above duties, the consolidated company acquires the public rights of the original companies, including even that of eminent domain." And it may therefore continue condemnation proceedings for the acquisition of right of way begun by the original corporations. But under the laws of Alabama the power of a railroad company to acquire land in aid of the construction of its road will not pass to a consolidated corporation of which it forms a part, unless its line, when completed according to its charter, will form a continuous track with those of the other constituents of the consolidated corporation, so as to admit of the passage of trains without break or interruption; the code providing that railroad companies whose tracks, when completed, admit the continuous passage of cars, without break

1 Charlotte &c. R. Co. v. Gibbes, N. Y. Laws of 1875, ch. 108, § 1, as (1388) 27 S. C. 385. amended by N. Y. Laws of 1883, ch.

2 Mead v. New York &c. R. Co., 387. 45 Conn. 199.

3 Peoria &c. R. Co. v. Coal Val. Min. Co., 68 Ill. 489.

4 Campbell v. Marietta &c. R. Co., 23 Ohio St. 168. Cf. Daniels v. St. Louis &c. R. Co., 62 Mo. 43.

5 N. Y. Laws of 1869, ch. 917, §7;

68 Vic. ch. 20, § 91.

7 South Carolina R. Co. v. Blake,

9 Rich. 228, 233.

8 Kip v. New York &c. R. Co., 67 N. Y. 227; Toledo &c. Ry. Co. v. Dunlap, 47 Mich. 456.

or interruption, may consolidate themselves into one corporation, which shall possess all the powers, rights, and franchises of its constituent members.' Appropriations made to one of the original companies are payable to the new. And an exemption from jury duty enjoyed by the officers of the old companies, vests in those of the new.

§ 342. Right of the new company to the property of the old ones. Where one corporation goes entirely out of existence by being consolidated or merged into another, and no arrangements are made respecting the property and liabilities of the extinguished corporation, the one newly created will be entitled to all the property. The New York "Business Corporation Law" of 1890, provides that upon the consolidation and organization of the new corporation, all and singular the rights, privileges, franchises and interests of every kind belonging to or enjoyed by the corporations so, consolidated, and every species of property, real, personal and mixed, and things in action thereunto belonging, mentioned in such agreement of consolidation, shall be deemed to be transferred and vested in, and may be enjoyed by such new corporation, without any other deed or transfer; and such new corporation shall hold and enjoy the same and all rights of property, privileges, franchises and interests in the same manner and to the same extent as if the several corporations so consolidated had continued to retain the title and transact the business of such corporations, and the title to real and personal estate and rights and privileges acquired and enjoyed by either of the corporations shall not revert or be impaired by such consolidation, or anything relating thereto. In a recent Ala

1 Georgia Pac. Ry. Co. v. Gaines, (Ala. 1890) 7 So. Rep. 382; following Georgia Pac. R. Co. v. Wilks, (1889) 86 Ala. 479.

2 Scott v. Hansheer, 94 Ind. 1.

3 Zimmer v. State, 30 Ark. 677. See also, Fisher v. New York &c. R. Co., 46 N. Y. 644.

4 Thompson v. Abbott, 61 Mo. 176. 5 N. Y. Laws, 1890, c. 567, § 16. The English Railways Clauses Act of 1863, enacts that, "except as may be otherwise provided in the special

act, all debts and money due from or to the dissolved company, or any persons on their behalf, shall be payable and paid by or to the amalgamated company, (26 & 27 Vic. ch. 92, § 40); that all tolls, rates, duties and money due or payable by virtue of any act relating to the dissolved company from or to that company shall be due and payable from or to the amalgamated company, and shall be recoverable from or by the amalgamated company, by the same

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