things said: "The legal power to consolidate these roads is not questioned, but it is alleged by the bill that it wholly changed the character of the enterprise. "The truth of this allegation is admitted by the demurrer. The defendants below saw proper to admit this allegation to be true, and not to traverse the fact, and we must act upon it precisely as if it had been established by evidence. They also abided by their demurrer, and failed to obtain leave to answer. It is believed that no court has ever held, that a change of such an enterprise so as to - render it radical, and to constitute it a different corporation for the attainment of other purposes than that to which the subscription was made, did not release the subscriber from its payment. Here it stands admitted that such was the character of the change, and by it, the maker of these instruments was released from their payment. It is admitted, that this money is sought to be collected to be applied to the consolidation of a road wholly different in its objects from that to which the subscription was made. "This the company or the legislature have no power to accomplish." And the decree of the court below was affirmed. In the case of Farnum v. Blackstone Canal Corporation, 1 Sumner, 62. This was a case where two corporations were chartered by the same name-one in Massachusetts and the other in Rhode Islandto build a canal, etc. On the 20th of February, 1827, the legislature of Massachusetts enacted that, after the 1st day of July, then next, the stockholders of the Blackstone Canal Co., of Rhode Island, should be constituted stockholders in the Blackstone Canal Co., of Massachusetts, with the powers, rights and privileges of original subscribers, but that the consolidation of the two companies should not take place until the provisions of the act had been accepted by both corporations. Rhode Island also passed an act accepting the terms specified by the Massachusetts legislature. It was, when the matter afterwards came before the court, contended that the laws of the two legislatures had organized out of the two corporations, a new corporation; but the court held that, "although in virtue of these several acts, the corporations acquired a unity of interests, it by no means follows, that they ceased to exist as distinct and different corporations. Their powers, their rights, their privileges, their duties, remained distinct and several, as before, according to their respective acts of incorporation. Neither could exercise the rights, powers or privileges conferred on the other. There was no corporate identity-neither was merged in the other. If it were otherwise, which became merged? The acts of incorporation create no merger, and neither is pointed out as survivor or successor. We must treat the case, then, as one of distinct cor'porations, acting within the sphere of their respective charters, for purposes of common interest, and not as a case, where all the powers of both were concentrated in one. The union was of interests and stocks, and not a surrender of personal identity or corporate existence by either corporation." And it will be particularly and specially observed, that no stockholder objected to the arrangement at all; but from all that appears, that the stockholders of one, voluntarily became stockholders in the other, by unanimous consent. The case which gave rise to the decision arose out of a suit brought against the proprietors of the Blackstone Canal-to compel them to reduce the height of a dam across the Blackstone river-and is important to show that a consolidation of two corporations, effected by unanimous consent, did not create a new corporation. The Supreme Court of Illinois decided in the case of the Marine Bank of Chicago v. Ogden, 29 Ill., 268, that two corporations could not even form a partnership. If that is so, upon what principles of law can they amalgamate their capital, rights, privileges and franchises? Baltimore and Susquehanna Railroad Company v. Musselman, 2 Grant's Cases, (Pa.) 348. This was an action brought by the defendant in error against the company for causing the death of her husband. After suit brought, the plaintiff in error was consolidated with several other railroad companies, which consolidation was called the Northern Central Railway Company. The plaintiff in error suggested this consolidation, before the jury was called, and filed it. LOWRIE, J., says- "The learned judge of the common pleas was right in deciding that the act of union or consolidation of this corporation with three others, under a law which continued all its liabilities, was not such a dissolution of the corporation, as abated an action commenced before, the consolidation was effected. The law says, that the liabilities shall continue, or be assumed by the consolidated company. If they were assumed, then the new company must attend to the suit, and answer the judgment, for that was one of the liabilities by which this corporation was bound; so qua cumque via, the suit does not abate. But, without any such provision as the above, in the law authorizing the consolidation, a court of justice would not consider the mere voluntary union of several companies into one, as equivalent to the death of either of them; or attribute to the law-making power, an intention of enabling them to discharge their liabilities in such a summary way. It is not a case of death, for the new corporation lives from the life of the old one; their several lives are transferred into it, and, unlike ordinary cases of metemsychosis, this translation is accompanied by full consciousnoss of the former state, and its liabilities. If there has been a confusion of four lives into one, we leave, for another occasion, the decision, how far this one will be considered as assuming, or charged with, the duties of its several eléments." When the State consents to the consolidation of two railroad companies, by an act of the legislature, the act of the companies in making it, is not absolutely void, but any stockholder who does not consent would be discharged from his subscription. McCray v. Junction R. R. Co. 9 Ind. 358. Two distinct corporations cannot form a partnership, neither can they take an estate in joint tenancy, either jointly with another corporation or with a natural person. Telfair v. Howe 3 Rich. Eq. 235. PENNSYLVANIA CASES. Lauman v. The Lebanon Valley R. R. Co., 30 "A railroad corporation may abandon its charter and dissolve itself, except so far as its public duties as conservators of a high way, may limit this power; and the legislature may release it from this limitation, and allow a transfer of its duties to other hands. A single stockholder has no right to object to a transfer of all the property of the corporation to another company, under the authority of an act of assembly. But, he cannot be compelled, by law, to accept the stock of the other company in payment for the shares held by him; and a court of equity will restrain the corporation and its officers from entering into a contract to that effect. The dissolution of a corporation is not a corporate act, but an act of the members of the corporation; and its officers in affecting such an arrangement, act as trustees of the members, not as corporate functionaries. Under the constitution, a majority of the members of a corporation cannot be authorized to divest the interest of a dissenting stockholder, by a transfer of the whole of its property to another company to be paid for in the shares of such other company, without first giving security for the interest of such dissenting stockholder." This case seems to go upon the theory, that the corporation becomes dissolved by a sale of all its property; but there is only one way voluntarily to dissolve it, and that is, by surrender to the gov ernment. Ang. & Ames on Corp. Sec. 772-7. Where the State consents to the consolidation of two railroad companies, by act of the legislature, the act of consolidation is not void; but stockholders not consenting thereto, are released. McCray v. The Junction R. R. Co., 9 Ind. 358. Sparrow v. The Evansville R. R. Co., 7 Ind. 369. 12 Ind. 605. 13 Ind. 387. 16 Ind. 46. Carlisle v. The Terre Haute &c. R. R. Co., 6 The relation between a railroad company and a stockholder, is one of contract—and any legislative enactment which, without his assent, authorizes a material change in the powers or purposes of the corporation, not in aid of the original object, if acted upon by the corporation, is not binding upon him. McCray v. The Junction R. R. Co. 9 Indiana, Sparrow v. The Evansville &c. R. R. Co., 7 Fisher v. The Evansville &c. Railroad Co., 7 Carlisle v. Terre Haute Railroad Co., 6 Ind. Pierce's American Railroad Law, 89-99, and cases there cited. But the principles which must govern in this case have already been established by the United States Supreme Court, in the case of Clearwater v. Meredith, 1 Wallace, 39. In this case, Judge DAVIS laid down the principles of law which should govern, precisely as we contend for, and in the following language: "The Cincinnati, Cambridge & Chicago Short Line Railway Company, whose stock was guaranteed, was, as stated in the pleadings, organized under a general act of the State of Indiana, providing for the incorporation of railroad companies. This act was passed May 11th, 1852, and contained no provision permitting railroad corporations to consolidate their stock. It can readily be seen that the interests of the public, as well as the perfection of the railway system, called for the exercise of a power by which different lines of a road could be united. Accordingly, on the 23d of February, 1863, the General Assembly of Indiana, passed an act, allowing any railway company that had been organized to intersect and unite their road with any other road, constructed or in progress of construction, and to merge and consolidate their stock, and on the 4th of March, 1853, the privileges of the act were extended to railroads that should be afterwards organized. The power of the legislature to confer such authority cannot be ques |