Page:Memphis & Little Rock Railway Co. v. Berry.pdf/3

 which are necessary may be presumed to be conferred by implication. Morawetz on Corp., Sec. 191, 2 Kent, 298; 18 B. Mon. (Ky.), 431; 10 N.J. Eq., 352; 15 Conn., 475; see also Pierce on Railroads, 500; 11 Allen, 326, 334; 40 N.Y., 168; 27 N.H., 86, 94; 42 Md., 581; 62 Mo. 329. The charter contains an express power to mortgage the charter. Is there any rule of law which will make the power to mortgage the charter void? Such mortgages are valid when made by legislative consent. Field on Corp., Sec. 271; Phila. v. W. U. Tel. Co., 11 Phila., Pa., 327; 22 Ohio St., 411, 428; 10 Ohio St., 373–8; 14 Pet., 45, 48; 11 Allen, 65; 4 Met., 566; 10 Allen, 446, 455; 22 N.J. Eq., 423; 9 Sm. & M., 394, 431; 4 Biss., 35, 42; 2 Redf. R. Cas., 621–3; 22 Oh. St., 428.

The mortgage conveyed all the "franchises, rights, privileges and immunities," etc. Exemption from taxation is a privilege, an immunity, and one that would pass by mortgage. Humphrey v. Pegues, 16 Wall, 244; 15 Wall, 460; 20 Ib., 36; 30 Ark. 677, 693, 701; 3 Fed. Rep., 266, 280; 4 Zab., 555; 42 Conn., 103.

The mere fact that general laws existed under which the purchasers might have organized the new corporation raises no presumption that they actually did organize under such acts. The presumption is the other way, for when a party has two courses before him, and has acted without indicating which he has followed, the law presumes that he has taken the course best for his own interest. The legislature gave the company the power to mortgage its charter; the act of April 29, 1873, gave the right to the purchasers to buy the charter, property, privileges and immunities. The legislature had given the parties plain and explicit permission to make the contract, and they had made it prior to the adoption of the constitution of 1874, and the provisions of that constitution could not impair its obligation. As the