Page:Memphis & Little Rock Railway Co. v. Berry.pdf/13

 part of the transaction, and that. without which it would be a nullity, is the law under which the transfer is made. The statute authorizing the transfer and declaring its effect is the granting of a new charter couched in few words, and to take effect upon condition of the surrender of the old charter, and the deed of transfer is only the evidence of the abandonment."

Now, all we have in this case, from which such grant is inferable on any theory, is that in the act of incorporation of the old company it is authorized to borrow money "on the mortgage of its charter and works."

The utmost that a sale in this case could be claimed to accomplish is to enable a new corporation to come into existence. Then there occurs a transfer from the old corporation to a new, distinct and independent corporation clothed with those rights and privileges which are transferable from one to another. But the privilege of exemption from taxation, as we have seen, is one inhering in the personality of the old corporation, and when that is destroyed the immunity goes with it. The two corporations could, at the most, only be claimed to be alike and not the same. "Similis est non idem."

But the new corporation, the appellant here, cannot, without stretch of inference and an implication of the most extraordinary proportions, be supposed to exist by virtue of an organization under the old act of incorporation. It rests for its foundation on the one sole clause referred to, "the mortgage of its charter and works." The this can be construed to provide for the organization of a corporation in the distant future, and to "point out," in the language of the authorities, "the mode and manner in which the sale and transfer is to be effected," seems impossible.

As is well said by the learned counsel of appellees, "the charter in question says nothing about making a new