"First, these companies, their capital stock, their roads, debts, dues, rights in action, franchises, interests, and property of every kind, . . . are merged, united, and consolidated into one jointstock company, one road, one interest, and one property, upon the terms following. . . . . Second, the corporate name, franchises, rights, immunities, and organization of the Eaton and Hamilton R. R. Co. shall be preserved, and remain intact, and the said consolidated company shall be known by, and its business transacted in that name; in every sense, as if this consolidation had not taken place," etc. There does not appear to have been any ratifying

statute.

Throughout the opinion, the transaction is spoken of as a consolidation; although, as the judge says, it "appears that by the act of consolidation, the exact existence of the Ohio company is continued, while that of the Indiana company is extinguished, after all its property is transferred to the Ohio company." In this case, the agreement of the parties, not the statute, is spoken of, as "the act of consolidation;" as, in the others, the agreements are spoken of as "the act and terms of consolidation," and "the agreement and act of consolidation," respectively.

...

In regard to the meaning of these terms, we will cite only one case more, that of The Central R. R. and Banking Co. of Georgia v. The State of Georgia, 92 U. S. 665. A statute of that State authorized "The Macon and Western R. R. Co., and the Central R. R. and Banking Co. of Georgia, to unite and consolidate the stocks of the said two companies, and all the rights, privileges, immunities, property, and franchises, belonging or attaching to said companies, under the name and charter of the said 'The Central R. R. and Banking Co. of Georgia,' in such manner that each and every owner and holder of shares of the capital stock of the Macon and Western R. R. Co. shall be entitled to, and receive an equal number of shares of the capital stock of the consolidated. company;" provided, that nothing therein should "discharge either of said companies" from any of its contracts, but that they should all be assumed by, and be binding on the Central R. R. and Banking Co. of Georgia," etc.

It was insisted there, as well as here, and doubtless upon the supposed peculiar force of the words "unite and consolidate," and "consolidated companies," and "union and consolidation" (which are also in the act), that the statute contemplated a surrender by the original corporations of their charters, and the creation of a new corporation, which should receive the name of one of those passing out of existence, and "the grant to it of a new charter, or a regrant of the old. (P. 670.) Else why, it was probably urged, as it is here, if the consolidated company is no other than the original Central R. R. Co., with enlarged property and privileges derived from the other company, is there no mention of the words

merger, or absorption, or selling out, in the statute, and why is that company made to commit "the absurdity of assuming its own debts and liabilities"? But the Supreme Court of the United States unanimously decided against that view. Its opinion repudiates the theory, that of necessity, and ex vi termini, a new corporation must be produced by the consolidation of two or more previously existing ones; and its judgment is in accordance with the rulings in the cases before referred to, and not in conflict, we believe, with any other that is reported.

We do not remember that there was any other than this recent decision of the Supreme Court of the United States which attracted the attention of the chancellor and counsel, as at variance with their theory or doctrine; and although they elaborately pointed out the differences between that case and the present, they evidently did not yield assent to the opinion in the former. They cling, on the contrary, to the definitions with which they set out, as established by the "adjudged construction" of "adjudicated terms;" and so dominating had their ideas of these become as to urge them into another serious error.

One of the chief pillars of their argument is, that the Georgia companies had no authority from the legislature of their State to enter into an union, by which one of the contracting corporations should survive another, or the others, and continue to exist, with the stockholders, property, and rights of the latter, as its stockholders, property and rights; but that, however advantageous this might be to all concerned, or however much insisted on, yet the existing corporations must all perish, and a new one be brought into being as the consolidated corporation, though to be endowed only and exactly as such survivor might have been. In emphatic language, counsel says: "There is no word, term, or expression, in those enabling acts, in their charters, or in any act of the legislature of Georgia relating to these companies, that tends to authorize any such sale, transfer, merger, or absorption;" that is, to put it in words which will not delude, to authorize a union of the rights, property and effects of one or more of the original corporations, with those of another, coupled with a provision that the stockholders of the former should become and be stockholders of the latter also. Alluding to the statutes, counsel proceed: "The terms used, and the only ones used, are these: that said companies' are hereby authorized and empowered . . . to unite and consolidate their road, stock and franchises, with the road, stock and franchises (of each other), and any other railroad company of this or any adjacent State." Here they stop. Nothing but the conviction that "the dissolution of all the old corporations, and the creation of a new one, are essential to consolidation," and that the terms "unite and consolidate," no matter how qualified, necessarily import this, could have prevented counsel from seeing anything material in the

words immediately following those they cite, and therefore from quoting the sentence to the end. If they had done so, it would appear that the corporations referred to were authorized, by the statutes of Georgia, "to unite and consolidate their road, stock and franchises," with those of each other, and those of any other company of that or any adjacent State, "to such extent, and on such terms, as may be agreed on, by and with the company or companies entering into agreement with them;" and it could have been only because fully prepossessed by the same conviction, that the chancellor, in pursuing the same line of argument, although he sets forth this additional clause, concedes to it no effect, and makes on it no comment whatever.

Yet, as we before have seen, it was under laws similar in phraseology, but less emphatic, perhaps, that the same court and judge of Indiana, on whose brief opinion, in another case, the interpretation we have discussed was made chiefly to depend, upheld, as a consolidation, a union between two railroad corporations of different States, by which, while one of them was extinguished, the other acquired, according to the agreement of the parties, its rights and privileges, and became in part the property of its stockholders. "Legislative acts of Ohio and Indiana," says the Chief Justice who delivered the opinion, authorized these "railroad companies to consolidate upon such terms as might be agreed upon." That was the authority for their union. What their agreement was has been shown heretofore. Their right to enter into it, under the statute, was thought so clear that it was not made the subject of argu

ment.

Doubtless, other similar cases might be found, if sought for. But, if our minds be disabused of the error previously combatted, authorities of this kind are not needed. This proposition, we think, is plainly established. When the rights, franchises, and effects of two or more corporations, are, by legal authority and agreement of the parties, combined and united into one whole, and committed to a single corporation, the stockholders of which are composed of those (so far as they choose to become such) of the companies thus agreeing, this is in law, and according to common understanding, a consolidation of such companies; whether such single corporation, called the consolidated company, be a new one then created, or one of the original companies, continuing in existence with only larger rights, capacities and property. Acceptance of this as correct makes it easy to understand, that authority given to consolidate, "to such extent, and on such terms, as the parties may agree upon," confers the power to constitute one of the original companies the consolidated company. And the 11th article of the contract with A. D. Breed, made several months after the passage of the enabling acts of Georgia, leaves little room to doubt that

these were understood by the parties concerned, as conferring this power.

The authority being granted, the inquiry is then reduced to this: Whether, by the articles of agreement in this case, and the statutes ratifying them, the consolidated company is a new corporation, or the Alabama and Tennessee Rivers R. R. Co., with rights and property enlarged, under a new name.

On this question we must refer to what was said in our former opinion in this cause. 53 Ala. 313 et seq. The further observations we shall make will relate chiefly to the language of the agree ment and statutes, and be made in response to the criticisms of the same by counsel and the chancellor. We premise, however, that a consolidation of corporations, though accompanied by a transfer of property, is quite different from a mere sale, and might at that day have involved, especially when to be effected under the laws of two different States, very embarrassing considerations. There were no established forms for instruments to be used for such a purpose. It had been said, also, in judicial opinions, one from the Supreme Court of the United States, that two States could not jointly create, or unite in creating, one and the same corporation; and it was not until 1870 that this doctrine was overturned, in R. R. Co. v. Harris, 12 Wallace. It is to be observed, too, that the enabling statutes do not themselves undertake to create a new corporation.

The first three

Let us look now to the contract of consolidation. short articles, and the fifth, very naturally set forth, first, the agreement to consolidate the three companies into one, which shall pos sess the combined rights, property, and privileges of them all, and be composed of the stockholders of all, to the extent of their several payments, and be responsible for the debts of all. These four articles are almost the exact equivalent of the first article, above set forth, of the similar agreement in Eaton and H. R. R. Co. v. Hunt, supra (20 Ind. 460), and of the first article in that of the Philadelphia, Wilmington and Baltimore R. R. Co. v. Maryland (10) How. 383). But the parties did not go on, as in the latter case (intending to create a new corporation) they did, to frame a charter of incorporation for a new company, by prescribing the number of its shares of stock and the amount of each,-when, where, and how such new company should be organized; what its name should be; the number of its directors, or other officers; how they should be appointed, and the powers they should possess; or any of the other provisions necessary in a charter of incorporation, that relate to the interior structure and action of a body politic, and give it vitality and individuality as such. Nothing in these four articles, of this contract of consolidation, decides, or was intended to decide, under what charter of incorporation the company should be organized and operate, or, therefore, what particular institution, or body pol

itic, should possess, employ and exercise the rights, property and franchises thus combined, and be the consolidated company.

This is first provided for in the fourth article, as follows: "The president and board of directors of the Alabama and Tennessee Rivers R. R. Co. shall have and exercise full power and control over all the property of all of said companies, hereby made the property of the consolidated company, and . . . shall cause the railroad, which is now completed from Selma to Blue Mountain, to be extended and completed from Blue Mountain, by way of Rome, to Dalton, over the best and most practicable route; and to enable them to do so, and to liquidate the debts of said company, the said president and directors are hereby authorized to issue bonds, and execute a mortgage or mortgages on any part or all of the property and franchises of all of said companies, including the road-bed and right of way from Selma to Dalton."

Possession and control of the common property and interests are hereby unreservedly conferred; and the duty is imposed of carrying on the great work, to accomplish which the consolidation was effected, not temporarily, but to completion, all the power which the constituent companies themselves had, or could grant, being conferred to insure its execution. And nowhere else in the agreement is the duty or authority to build and complete the road to Dalton, or, consequently, the franchises necessary for its accomplishment, transferred or given to any other company, whether by a description of it as the consolidated company, or by any other designation.

Language could have been used, which more directly and explicitly would have constituted the Alabama company the consolidated company. Perhaps, this was prevented by doubts existing as to the proper manner of effecting it, under the acts of two separate States, and by the impression that the original corporations ought, as existing, individual entities, jointly to engage to abide by and confirm whatever the consolidated company, or the Alabama company as the consolidated company, might do in the premises, until the authority should be perfected and perpetuated by ratification. But, however that may be, it is clear from this article, and the 6th and 7th (to be considered next), that the intent of the parties was to invest the Alabama and Tennessee Rivers R. R. Co. with all the property, powers and franchises, to be possessed and exercised by the consolidated company, for the performance of its functions. It was the consolidated company, or there was

none.

The 6th article declares: "All acts, contracts, and obligations, done and made, or assumed, by and under the authority of the president and directors of the Alabama and Tennessee Rivers R. R. Co., and all such acts, contracts and obligations, hereafter done, made or assumed, by or under the authority of said president and