create a new corporation as a combination of the constituent companies which are generally thereby dissolved either by express provision of the statute or by implication. Ordinarily, by the terms of the statute or by implication therefrom, when corporations are consolidated under legislative authority, all of the consolidating corporations are dissolved and extinguished absolutely, so that they not longer exist for any purpose.58 Generally the decisions state the rule just as if the dissolution followed as a result of the creation of a new corporation without any exception to show that there may be the creation of a new corporation without the entire extinction of the constituent companies for all purposes, which exception is well recognized.59 § 4704. Where attempted consolidation is ineffectual. If the attempt to consolidate is ineffiectual because not authorized by statute or for other reasons, there is no dissolution of the constituent companies.60 § 4705. Continued existence by implication. The continued existence of the constituent companies, at least for a limited time, may 58 United States. Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 38 L. Ed. 450; Atlantic & G. R. Co. v. Georgia, 98 U. S. 359, 25 L. Ed. 185; Shields v. Ohio, 95 U. S. 319, 24 L. Ed. 357; Clearwater v. Meredith, 1 Wall. 25, 17 L. Ed. 604; Jones v. Missouri-Edison Elec. Co., 144 Fed. 765, rev'g 135 Fed. 153. Arkansas. St. Louis, I. M. & S. R. Co. v. Berry, 41 Ark. 509, aff'd 113 U. S. 465, 28 L. Ed. 1055. Colorado. Solmonovich v. Denver Consol. Tramway Co., 39 Colo. 282, 291, 89 Pac. 57. Illinois. Chicago Title & Trust Co. v. Doyle, 259 Ill. 489, 47 L. R. A. (N. S.) 1066, 102 N. E. 790; People v. Louisville & N. R. Co., 120 Ill. 48, 10 N. E. 657. Indiana. Dillon v. Dorne, 19 Ind. 203; McMahan v. Morrison, 16 Ind. 172, 79 Am. Dec. 418. Kansas. Kansas, O. & T. R. Co. v. Smith, 40 Kan. 192, 19 Pac. 636. Louisiana. Succession of Hutchin- See also infra, the chapter on Dis- But if the consolidation is the result of fraud or breach of trust, the constituent companies are not so extinguished as to deprive them and their stockholders of the right to sue in equity to avoid the consolidation. Jones v. Missouri-Edison Elec. Co., 144 Fed. 765, rev'g 135 Fed. 153. 59 Ohio & M. R. Co. v. People, 123 Ill. 467, 14 N. E. 874; Racine & M. R. Co. v. Farmers' Loan & Trust Co., 49 Ill. 331, 95 Am. Dec. 595. See also § 4706, infra. 60 American Loan & Trust Co. v. Minnesota & N. W. R. Co., 157 II. 641, 42 N. E. 153; State v. Crawfordsville & S. Turnpike Co., 102 Ind. 283, 1 N. E. 395; Peninsular R. Co. v. Tharp, 28 Mich. 506. be implied from provisions of the consolidation statute. For instance, if the consolidation statute makes no provision for succession of the consolidated company to the rights of the constituent companies until a board of directors is elected, the constituent companies will continue in existence from the date of consolidation until the election of such board.61 § 4706. Continuance of constituent companies for particular purposes. Sometimes a statute authorizing consolidation, while it does not provide for continuance of the consolidating corporations for all purposes, or indefinitely, expressly provides for their continuance for certain purposes, as for the purpose of adjusting their liabilities, or transferring their property.62 Thus, it is often expressly provided that the constituent companies shall continue in existence so far as necessary to protect the claims of creditors, 63 but this does not continue the existence for all purposes,64 nor does it compel creditors to sue the constituent companies rather than the consolidated company where the latter is also made liable.65 So constituent corporations do not entirely die on consolidation so as to prevent them from maintaining or defending actions pending at the time of the consolidation, where a statute provides that consolidation shall not abate or discontinue such actions.66 § 4707. Time when new company comes into existence. The new company, formed by a consolidation, comes into existence at the date of the consolidation.67 § 4708. Merger of one company into another. The statutes authorizing a combination do not necessarily operate to create a new cor 61 Mansfield, C. & L. M. R. Co. v. Brown, 26 Ohio St. 223. 62 Edison Elec. Light Co. v. New Haven Elec. Co., 35 Fed. 233; Lightner v. Boston & A. R. Co., 1 Lowell 338, Fed. Cas. No. 8,343; Whipple v. Union Pac. Ry. Co., 28 Kan. 474; Baltimore & S. R. Co. v. Musselman, 2 Grant's Cas. (Pa.) 348; East Tennessee & G. R. Co. v. Evans, 6 Heisk. (Tenn.) 607. 63 Spence v. Mobile & M. Ry. Co., 79 Ala. 576; Selma, R. & D. R. Co. v. Harbin, 40 Ga. 706; Buell v. Baltimore & O. S. W. R. Co., 39 N. Y. App. Div. 236, 57 N. Y. Supp. 111; Compton v. Wabash, St. L. & P. Ry. Co., 45 Ohio St. 592, 18 N. E. 380, 16 N. E. 110. 64 State v. Maine Cent. R. Co., 66 Me. 488. 65 See § 4737, infra. 66 Riddell v. Rochester German Ins. Co. of New York, 35 R. I. 45, 85 Atl. 273. 67 Adams v. Yazoo & M. Val. R. Co., 77 Miss. 194, 60 L. R. A. 33, 28 So. 956, 24 So. 200, 317, aff'd 180 U. S. 1, 45 L. Ed. 395 poration. Whether a combination has this effect in any particular case depends upon the intention as set forth in the statutes. The legislature may authorize a merger, sometimes loosely called a consolidation,69 of one existing corporation in another, and continue the existence of the latter with the rights, franchises, privileges and property of the former, in addition to its own. If such an intention appears, the merging corporation only is dissolved,70 and the fact that the name of the continuing corporation is changed does not tend to show that it is a new corporation, since a change in the name of a corporation works no change in its identity.71 A contract whereby one corporation transfers all of its property and franchises to another, under legislative authority, is, unless a contrary intention appears, a surrender of its charter by the former with the consent of the state, and operates as a dissolution of that corporation, but the existence of the corporation to which the transfer is made continues.72 68 See § 4700, supra. 69 See § 4662, supra. 70 United States. Atlantic & G. R. Co. v. Georgia, 98 U. S. 359, 25 L. Ed. 185; Central Railroad & Banking Co. v. Georgia, 92 U. S. 665, 23 L. Ed. 757; Philadelphia & W. R. Co. v. Maryland, 10 How. 376, 13 L. Ed. 461. Alabama. Meyer v. Johnston, 64 Ala. 603. Connecticut. Bishop v. Brainerd, 28 Conn. 289. Illinois. Chicago, S. F. & C. R. Co., v. Ashling, 160 Ill. 373, 43 N. E. 373. Indiana. Booe v. Junction R. Co., 10 Ind. 93. Kansas. Berry v. Kansas City, Ft. S. & M. R. Co., 52 Kan. 774, 39 Am. St. Rep. 381, 36 Pac. 724, 52 Kan. 759, 39 Am. St. Rep. 371, 34 Pac. 805. Where an act of the legislature authorized two railroad companies (A. and B.) to unite and consolidate their stocks, and all their rights, privileges, immunities, property and franchises, under the name and charter of A., in such manner that each owner of shares of the stock of B. should be entitled to receive an equal number of shares of the consolidated company, and declared that all contracts of both companies should be assumed by and be binding upon A.; that its capital stock should not exceed the aggregate of the capital stock of both companies; that all their benefits and rights should accrue to it; and that, upon the union and consolidation, each stockholder of B. should be entitled to receive a certificate for a like number of shares of stock of A. upon surrender of his certificate of stock of B.,-it was held that the consolidation did not dissolve both A. and B., and create a new company, but dissolved B. only, merging it in A. Central Railroad & Banking Co. V. Georgia, 92 U. S. 665, 23 L. Ed. 757. Under some statutes, where a corporation purchases the assets of another corporation, the purchase merges the selling corporation into the purchasing corporation and no new corporation is created. Chicago & E. I. R. Co. v. Doyle, 256 Ill. 514, 100 N. E. 278; Chicago, S. F. & C. R. Co. v. Ashling, 160 Ill. 373, 43 N. E. 373. 71 Meyer v. Johnston, 64 Ala. 603. 72 Chicago, S. F. & C. R. Co. v. Ashling, 160 Ill. 373, 43 N. E. 373; A constituent corporation merged into another corporation and becoming extinct cannot, of course, create new obligations, nor can it become liable for acts of the absorbing corporation.73 § 4709. Transfer of property without consolidation or merger. A transfer of all its property and franchises by a corporation does not necessarily dissolve the corporation, for a corporation may exist without any assets at all. Nor is a corporation necessarily dissolved by a sale of its property and franchises under an execution, or on foreclosure of a mortgage.74 A corporation may, however, surrender its charter and dissolve with the consent of the state. And the terms of a statute authorizing a corporation to transfer its property and franchises, or authorizing their sale under execution or foreclosure, may be such that the transfer will operate as a dissolution. The question depends upon the intention as expressed in the statute.75 It has been held that if one corporation is vested by statute with all the property and rights of another whose stock it acquires by exchange of its shares of stock, then, although the law does not expressly dissolve the selling corporation, yet as it is left without stock, officers, property, or franchises, it is dissolved by the operation of the statute which brings such condition into existence.76 V. RIGHTS, POWERS, FRANCHISES, PRIVILEGES AND PROPERTY OF CONSOLIDATED OR ABSORBING CORPORATION § 4710. As dependent upon nature of combination-In general. The rights, powers, property, exemptions, etc., acquired by the new or absorbing company depend somewhat on the nature of the combination, i. e., whether it constitutes a consolidation resulting in the formation of a new corporation, or, whether it results in a merger leaving one company in existence which absorbs the other, or whether it results merely in an acquisition of all or part of the property of one company by another without any consolidation or merger. § 4711. Where one corporation merely purchases the property of another. A transfer of all the property and franchises of one cor Chicago & E. I. R. Co. v. State, 153 73 New York v. Sixth Ave. R. Co., 77 N. Y. App. Div. 367, 79 N. Y. Supp. 319. 74 See infra, chapter on Dissolution. A transfer of all the assets of a corporation does not dissolve it so as to prevent it from suing or being sued. Pritchard v. Barnes, 101 Wis. 86, 76 N. W. 1106. 75 See infra, chapter on Dissolution. 76 Rochester R. Co. v. Rochester, 205 U. S. 236, 256, 51 L. Ed. 784. poration to another, where there is no consolidation or merger in the strict sense of such terms, while it passes title to such property and franchises,77 does not include a transfer of all the powers or immunities of the selling corporation, as a general rule.78 But it has been held that a corporation which purchases all the property and franchises of another at a dissolution sale has the exclusive right to use the corporate name of the selling company, at least so far as to show that it is the successor of such corporation.79 The right of a corporation to sue its officers for secret profits does not pass to a new corporation created for the purpose of receiving the property of the old one but not merged with the old corporation by legislative authority.80 A license issued to a selling company does not inure to the benefit of a purchasing company so as to enable it to do business thereunder,.81 A sale, under legislative authority, of property of a corporation, the value of which depends upon special franchises which the corporation has, as in the case of a sale of the road and other property of a railroad company, the value of which depends upon the franchise to operate the railroad,-vests the purchaser with the franchises also, it is generally held.82 This is true, in the absence of supra. By a conveyance from a railroad corporation of all its rights, embracing the right of way across public lands and grading and tunneling involving large expenditure, and by the filing of maps of survey by the new corporation, no action ever having been taken by the government to forfeit the rights claimed by the original corporation, the new corporation may acquire such rights, prima facie, as will authorize a preliminary injunction restraining a rival corporation from interference with completion of the work. Utah, N. & C. R. Co. v. Utah & C. R. Co., 110 Fed. 879. 78 San Antonio Traction Co. v. Altgelt (Tex. Civ. App.), 81 S. W. 106. "A corporation having no authority under its own charter to acquire and exercise the rights, powers and franchises of another corporation or to carry on the business of such other corporation, does not succeed to such rights, powers and franchises by purchasing the property of the other company, though it be the whole of such property employed by that company in carrying on the business it was chartered to engage in." Southern R. Co. v. Mitchell, 139 Ala. 629, 645, 37 So. 85. 79 Metropolitan Telephone & Telegraph Co. v. Metropolitan Telephone & Telegraph Co., 156 N. Y. App. Div. 577, 141 N. Y. Supp. 598; Horner & Co. v. Lawrence, 86 N. Y. Misc. 95, 149 N. Y. Supp. 82. 80 United Zinc Companies v. Harwood, 216 Mass. 474, Ann. Cas. 1915 B 948, 103 N. E. 1037, where right to sue was held not assignable. 81 Southern Car & Foundry Co. v. Calhoun County, 141 Ala. 250, 37 So. 425. 82 Morgan v. Louisiana, 93 U. S. 217, 23 L. Ed. 860; Lawrence v. Morgan's Louisiana & T. Railroad & |