provision to the contrary, although the purchaser is a natural person; and he may organize a corporation, and transfer the property and franchises to it.83 It follows that the purchaser of a railroad, whether a natural person or a corporation, acquires the right to appropriate, under the power of eminent domain, strips of land necessary for the construction of depots, cattle pens, coal bins, sheds and the like, without which the road could not be successfully operated.84 The term "franchises," it was said by the Supreme Court of the United States, "must always be considered in connection with the corporation or property to which it is alleged to appertain. The franchises of a railroad corporation are rights or privileges which are essential to the operations of the corporation, and without which its road and works would be of little value; such as the franchise to run cars, to take tolls, to appropriate earth and gravel for the bed of its road, or water for its engines, and the like. They are positive rights or privileges, without the possession of which the road of the company could not be successfully worked." 85

§ 4712. In case of consolidation. When corporations are consolidated, the rights, franchises and privileges of the consolidated corporation depend upon the intention of the legislature as manifested by the statute authorizing the consolidation. The legislature may confer upon it, with the consent of the consolidating corporations, which consent is given impliedly by entering into the consolidation, all the rights, franchises, privileges and property of the consolidating corporations, or it may withhold some of them, or it may add to them new rights, franchises or privileges. A consolidated corporation has such powers only as are expressly or impliedly conferred by the statute authorizing the consolidation.86

If there is no provision to the contrary in the statute or the agreement between the parties, the general rule, based upon the presumed intention of the legislature and the corporations, is that the consolidated corporation acquires by the consolidation all the rights, franchises, privileges and property of the consolidating corporations, subject to the same burdens and restrictions which attached thereto

Steamship Co., 39 La. Ann. 427, 4
Am. St. Rep. 265, 2 So. 69.

83 Lawrence v. Morgan's Louisiana & T. Railroad & Steamship Co., 39 La. Ann. 427, 4 Am. St. Rep. 265, 2 So. 69. 84 Lawrence v. Morgan's Louisiana & T. Railroad & Steamship Co., 39 La.

Ann. 427, 4 Am. St. Rep. 265, 2 So. 69.

85 Morgan v. Louisiana, 93 U. S. 217, 23 L. Ed. 860.

86 Succession of Hutchinson, 112 La. 656, 36 So. 639; State v. Maine Cent. R. Co., 66 Me. 488.

the consolidating corporations, respectively, under Generally, there is an express provision to this

effect in the statute authorizing consolidation, but it is not at all necessary. Such an intention on the part of the legislature will be presumed in the absence of provision to the contrary.88 When corporations "unite or become consolidated under authority of law, the presumption is, until the contrary appears, that the united or consolidated company has all the powers and privileges, and is subject to all the restrictions and liabilities, of those out of which it was created." 89 It was held in a Maine case that, when a new corporation is formed by the consolidation of existing corporations, and by the act authorizing the consolidation, the new corporation is to have the powers, privileges and immunities possessed by "each" of the consolidating corporations, the new corporation will have only the powers, privileges and immunities which the corporation with the fewest powers, privileges and immunities possessed, and which were common to all.90 It may well be doubted, however, whether this was the intention of the legislature.

§ 4713. As dependent on laws in force at time of consolidation. When the effect of a combination of corporations is to dissolve the old corporations and create an entirely new corporation, the powers and franchises of the new corporation are determined by the law in force at the time of the consolidation.91 Thus, a consolidated railroad company whose lines after consolidation exceed one hundred miles in length comes within the provisions of a mileage book statute applicable to lines exceeding one hundred miles in length, and the provision of the consolidation statute that the consolidated corporation shall be vested with all the "rights, privileges, exemptions and franchises" of the constituent corporations is not applicable.92

solidation of two universities was not deprived of the right to sell certain property which it had received from one of the constituent universities in order that the proceeds might be reinvested under proper restrictions, although the act consolidating the universities had provided that should there be a change in the location of the consolidated university the consolidation should cease and the property in question revert to the constituent university from which it had come. Board of Trustees of Free Public Library v. Curators of Kentucky Uni

versity, 24 Ky. L. Rep. 476, 68 S. W. 660.

88 See the cases cited in the note preceding.

89 Chief Justice Waite, in Tennessee v. Whitworth, 117 U. S. 139, 147, 29 L. Ed. 833.

90 State v. Maine Cent. R. Co., 66 Me. 488.

91 Shields v. Ohio, 95 U. S. 319, 24 L. Ed. 357, and see § 4724, infra.

92 Parish v. Ulster & D. R. Cơ., 192 N. Y. 353, 85 N. E. 153, rev'g 113 N. Y. App. Div. 894, 98 N. Y. Supp. 1109.

§ 4714. Title to property. Lands of the constituent companies vest in the consolidated company,93 and consents of abutting owners are property which passes to a street railway company upon a merger.94 A formal assignment of claims or contracts is not necessary to pass title thereto, in case of merger, to the corporation in which the corporation owning such claim is merged. The property is held by the consolidated company in its own right and not in trust for the constituent companies, even though it is liable for the debts of the latter.96

However, it has been held that property bequeathed to a constituent corporation does not pass to a consolidated company formed before the death of the testator.97

§ 4715. Particular powers and rights acquired. Under a provision giving a consolidated corporation the rights, franchises, privileges and property of the consolidating corporations, or without such a provision, and in the absence of provision to the contrary, it has been held that a consolidated corporation acquired the power of eminent domain enjoyed by one or both of the consolidating corporations,98 the right, in the case of a railroad company, to charge a certain rate for transportation of persons or property,99 the power, though a quasi public corporation, like a railroad company, to mortgage its property and franchises, an immunity of officers and employees from working on the public roads or serving on the jury, the

93 Cashman v. Brownlee, 128 Ind. 266, 27 N. E. 560.

94 Adee v. Nassau Elec. R. Co., 65 N. Y. App. Div. 529, 72 N. Y. Supp. 992, aff'd 173 N. Y. 580, 65 N. E. 1113. 95 Bank of Long Island v. Young, 101 N. Y. App. Div. 88, 91 N. Y. Supp. 849.

96 Greene v. Woodland Ave. & W. S. St. R. Co., 62 Ohio St. 67, 56 N. E. 642.

97 Gladding V. St. Matthew's Church, 25 R. I. 628, 65 L. R. A. 225, 105 Am. St. Rep. 904, 1 Ann. Cas. 537, 57 Atl. 860.

98 Smith v. Cleveland, C., C. & St. L. R. Co., 170 Ind. 382, 81 N. E. 501; Trester v. Missouri Pac. R. Co., 33 Neb. 171, 49 N. W. 1110; In re Trenton St. Ry. Co. (N. J. Eq.), 47 Atl.

819; South Carolina R. Co. v. Blake, 9 Rich. L. (S. C.) 228.

99 Fisher v. New York Cent. & H. River R. Co., 46 N. Y. 644, and see § 4728, infra.

Mead v. New York, H. & N. R. Co., 45 Conn. 199.

2 A provision in the charter of a railroad company exempting its offi cers, agents and servants from military and road duty, and service on juries, is not a mere personal privilege conferred upon the class of persons described, but constitutes a valuable right of the corporation, and passes to a new corporation formed by consolidation of such corporation with another. Zimmer v. State, 30 Ark. 677.

right to compromise and settle a claim against one of the consolidating corporations, and to maintain an action to enforce a settlement, the right to the benefit of a license to use a patent enjoyed by the consolidating corporations, and the right (in case of a railroad company, for example) to receive subscriptions by cities and other municipalities to its capital stock, payable in bonds of the municipality.5 A consolidated company may claim a mechanic's lien for materials furnished by a constituent corporation.

Franchise rights of the constituent companies vest in the consolidated company. Thus where, by statute, the consolidated company is vested with all the assets of the constituent companies, rights in the streets under municipal ordinances pass to the new corporation. But the life of a prior franchise is not, of course, extended by a consolidation of constituent railway companies into one company.9

§ 4716. Contracts and claims of consolidating corporations. Generally, by express provision of the statute or agreement of consolidation, and by implication, in the absence of provision to the contrary, the consolidated corporation succeeds to and may enforce the rights of the consolidating corporations under contracts made by them before the consolidation.10 Debtors of the original corporations are no longer indebted to them, but become the debtors of the new corporation.11 But to entitle a consolidated corporation to enforce contracts made by the consolidating corporations, it must show at least a colorable compliance with all the requirements of the law

3 Paine v. Lake Erie & L. R. Co., 31 Ind. 283.

4 Lightner v. Boston & A. R. Co., 1 Lowell 338, Fed. Cas. No. 8,343. See also Ridgway Tp. v. Griswold, 1 MeCrary 151, Fed. Cas. No. 11,819.

5 Lewis v. Clarendon, 5 Dill. 329, Fed. Cas. No. 8,320.

6 Chambers v. George Vassar's Sons & Co., 81 N. Y. Misc. 562, 143 N. Y. Supp. 615.

7 State v. Roach, 267 Mo. 300, 311, 184 S. W. 969.

8 Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58, 75, 57 L. Ed. 1389; Louisville v. Cumberland Telephone & Telegraph Co., 224 U. S. 649, 661, 56 L. Ed. 934.

VII Priv. Corp.-65

9 Cleveland Elec. R. Co. v. Cleveland, 137 Fed. 111.

10 Lightner v. Boston & A. R. Co., 1 Lowell 338, Fed. Cas. No. 8,343; Brown v. Dibble's Estate, 65 Mich. 520, 32 N. W. 656.

11 Bishop v. Brainerd, 28 Conn. 289. Where railroad companies were consolidated under an act which vested in the consolidated corporation all the powers, rights, franchises, etc., of the old corporations, it was held that the consolidated corporation had the right to use a patented axlebox which both of the old corporations had been licensed to use. Lightner v. Boston & A. R. Co., 1 Lowell 338, Fed. Cas. No. 8,343.