C. & M. R. R. Co. v. ST. L., I. M. & S. RY. Co. from the very necessities of government, and in consideration and furtherance of the welfare of the subject or citizen (as the case may be) no less than of the crown or the State, it is a legitimate exercise of the prerogative of sovereignty for the crown or State to alter or revoke the whole or a part of any unexecuted charter privilege on its part granted, to the observance of which it is not morally bound by the influence of some valuable consideration. This principle is recognized, indeed expressly declared, in section 6 of article XII of our present Constitution. So, in this case, aside from any consideration of the true meaning of the language found in the proviso of section 2 of the Cairo & Fulton Railroad Company's charter, which seems somewhat to limit the company's branch - building powers, I think the State of Arkansas has had, since the grant was made, the legal and moral right to annul any portion of that charter; provided that in so doing it did not interfere with the company's rights vested by some method recognized by law. In other words, the State never so far parted with its sovereignty as to lose power over the Cairo & Fulton Railroad Company, even to the extent of abso& Fulton Rail- lutely revoking the license, right or privilege to 2. Same-Cairo road Company charter powers Monopolies. Construction of build unlocated branches. It is inconceivable that a State would create a corporation and invest it gratuitously with the boundless privilege, with no limitation as to the time of its exercise, of so building branch railroads as to possibly create a monopoly of the railroad traffic in the State, or any part of it, and at the same time so surrender its power over its creature as to render it powerless to protect itself or its citizens against such a condition. The authority to build branches, generally, having been conferred by its charter in general, sweeping terms, and being unnecessary to the main object or principal purpose of the grant, was a mere license, and could have been revoked by the State.4 (4.) Pearsall v. Great Northern Railway, 161 U. S., 646, 673. C. & M. R. R. Co. v. ST. L., I. M. & S. RY. Co. But if the Cairo & Fulton Railroad Company's charter did confer upon it all of the branch-building privileges or powers claimed for it by the defendant in this litigation, does it necessarily follow that the defendant may avail itself of them by virtue of its succession? The authorities, logic and reason, answer the question in the negative. It has been settled by the Supreme Court of this State, that no section of the charter of the Cairo & Fulton Railroad Company conferred upon it the power or privilege of consolidating with the St. Louis & Iron Mountain Railway 3. Same Same Charter Lapse of. of consolidation Company, the constituent Missouri corporation of the defendant, after the completion of the former company's trunk line in 1873; that the purpose and extent of the power or privilege conferred by its charter was to authorize consolidation to enable it to build its trunk line to the northern boundary of the State; and that, when that purpose was accomplished without consolidation, the power or privilege was lost, it having been conferred for, and its operation limited to, that single object.5 Its right and power of consolidation, however, were derived from the 43d section of the act of the General Assembly, approved July 23, 1868, which provides that "Any railroad company now chartered under existing laws or which may hereafter become incorporated under this law, shall have power and authority to purchase and hold any connecting railroad, and operate the same or to consolidate their companies and make one company under the name of one or both, or any other name; but when such purchase is made or consolidation effected, the said company shall have and be entitled to all the benefits, rights, franchises, lands, and tenements, and property of every description belonging to said road or roads so sold or consolidated; and shall be liable to all the pains and penalties empowered (imposed) by their respective charters."6 (5.) St. L.. I. M. & S. Ry. Co. v. Berry, 41 Ark., 509-518; St. L., I. M. & S. Ry. Co. v. Berry, 113 U. S., 465-475. (6.) Acts of Arkansas, 1868, p. 311. C. & M. R. R. Co. v. ST. L., I. M. & S. RY. Co. But counsel for the defendant say that section conferred upon it "all the benefits, rights, franchises, privileges and powers of the Cairo & Fulton Railroad Com 4. Consolidation of corporations Effect of upon pany," and among these is the branch-building Constitutional privilege claimed in their answer. charter powers prohibition a charters. To sustain gainst special this contention, among other cases, they cite the remarks of Mr. Justice Harrison in the case of Zimmer v. State, 30 Ark., 677, which the same court, in an opinion subsequently delivered by Mr. Justice Smith, declares to be extra-judicial and of no importance. But, if it be conceded that the St. Louis, Iron Mountain & Southern Railway Company succeeded to that franchise, power, right or privilege (whether it be one or all of these is immaterial), in the language of the court in that case, at page 518: "Obviously the plaintiff is not the old Cairo & Fulton Company, nor does it claim to be. The complaint shows a consolidation with a Missouri corporation. And in the absence of a contrary intention, clearly expressed in the law authorizing it, the legal effect of a consolidation is to extinguish the constituent companies, and to create a new corporation, with property, liabilities and stockholders derived from those then passing out of existence."8 It must be remembered that the defendant derived its life from an act of the General Assembly passed after the adoption of the Constitution of 1868, which inhibits the legislature from passing a special act conferring corporate powers, but ordains, in section 48 of article 5, that "corporations may be formed under general laws, but such laws may, from time to time, be altered or repealed." If, then, the defendant derived its vitality—its right of existence-from the Act of 1868, it is not, and could not have been, placed in any better condition with reference to corporate rights, priv (7.) St. L., I. M. & S. Ry. Co. v. Berry, 41 Ark., 509, 519. (8.) See also the following cases, cited in 41 Ark., 518, supra: McMahan v. Morrison, 16 Ind., 172: Lauman v. Lebanon Valley Ry. Co., 30 Pa. St., 42: Clearwater v. Meredith, 1 Wall., 25: State v. Sherman, 22 Ohio St., 411: Shields v. State, 26 Ohio St., 86; s. c. on error, Shields v. Ohio, 95 U. S., 319: Central Railroad, etc., Co. v. Georgia, 92 U. S., 665; Railroad Co. v. Maine, 96 U. S., 499; Railroad Co. v. Georgia, 98 U. S., 359. C. & M. R. R. Co. v. ST. L., I. M. & S. RY. Co. ileges or immunities than any other railroad corporation created since the adoption of the Constitution of 1868. And it took the rights, benefits, privileges and franchises of the Cairo & Fulton Company subject to the constitutional provisions in force at the time of its creation on July 13, 1874.9 One of these provisions is the one referred to heretofore. Another, urged by the plaintiff as being applicable, is: "The General Assembly shall not grant to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."10 It is contended by defendant's counsel that this section has no application to corporations; that the term "citizen," as used in it, does not embrace a corporation; 5. "Citizen”— porations-"Class legislation." Meaning of Cor- and that the privileges therein referred to are not of the character of the privileges asserted by it in this litigation. Without reiterating the argument made, it is sufficient to say that it is forceful, and it seems to me replete with logic. If this were a case of first impression, unaided by the adjudications of our Supreme Court, I should regard the contention as well founded in law. But, as I construe the opinions, that court, in one case, has recognized and applied this provision to this very corporation defendant, and in another case, to a class of privileges not dissimilar in some features to those under consideration in this action.11 This court is not at liberty to disregard the force of those opinions. It follows that, if the term "citizen," as used in the section quoted, applies to corporations, the word "privileges" means, among others, such privileges as are claimed by the defendant in this action as constituting a part of its defense; and that, whatever they may be, it must hold and enjoy them upon the same terms as any similar corporation. In the exercise of its branching privilege, power or license, as it mav be, it must conform (9.) Shields v. Ohio, 95 U. S., 319; Railroad Co. v. Georgia, 98 U. S., 359. (10.) Constitution of Arkansas, 1868, Art. I, § 18. (11.) St. L., I. M. & S. Ry. Co. v. Berry, 41 Ark., 509; Railway Company v. Gill, 54 Ark., 101. C. & M. R. R. Co. v. ST. L., I. M. & S. RY. Co. to the same laws as any other corporation, prescribing the procedure in the selection, location and pre-emption of its line of railroad; and it must obey the mandate of the Constitution and acts of the General Assembly,, though ordained and enacted since the creation of its constituent Arkansas company. 6. Cairo & Ful er of State to modify, etc. It voluntarily accepted its life subject to the reserved power of its creator, the State of Arkansas, to alter or repeal its charter, or any portion of it, and to preton charter-Pow scribe the manner of the exercise of the privileges, or of the execution of the powers therein granted-in such manner, however, as not to destroy any of its vested rights or to impair the obligation of any contract. This reserved power in the State is ample authority for that clause of the Constitution of 1874, which ordains that, “No railroad, canal or other corporation, or the lessees, purchasers or managers of any railroad, canal or corpoProhibition ration, shall consolidate the stock, property or etc., of parallel franchises of such corporation with, or lease, or purchase the works or franchises of, or in any way control, any other railroad or canal corporation owning or having under its control a parallel or competing line; nor shall any officer of such railroad or canal corporation act as an officer of any other railroad or canal corporation owning or having control of a parallel or competing line; and the question whether railroads or canals are parallel or competing lines, shall, when demanded by the party complainant, be decided by a jury as in other civil issues."12 7. Same Same against owning, lines. It is also the warrant for section 2 of the Act of March 24, 1887,13 which provides that, "No railroad, or the lessees, purchasers or managers of any railroad, shall consolidate the stock, property or franchises of such corporation with, or lease or purchase the works or franchises of, or in any way control, any other railroad owning or having under its control a par (12.) Constitution of Arkansas, 1874, Art. XVII, § 4. (13.) Sandels & Hill's Digest, § 6302; Acts of Arkansas, 1887, p. 114. |