Page:St. Louis, Iron Mountain & Southern Railway Co. v. Berry (41 Ark. 509).pdf/11

41 Ark.] of this charter, the power to consolidate with any other railroad company in or out of the State was given. But, unless we are to pay no attention to the clause, "if it should be found necessary to facilitate the early construction of their said road," the exercise of this power must be limited to the period during which the road was in process of construction. Hence the Cairo & Fulton Company had not power, by virtue of its charter, to consolidate with the St. Louis and Iron Mountain Company on the thirtieth of April, 1874.

We attach no importance to the extra-judicial remarks of the judge who delivered the opinion in Zimmer v. State, 30 Ark., 677, to the effect that this consolidation was effected by virtue of a charter provision, and that the St. Louis, Iron Mountain & Southern Company had succeeded to all the rights, privileges, franchises and immunities of the Cairo and Fulton Company. It did not appear in that case that the consolidation took place after the completion of the road. The right to consolidate and the effect of consolidation upon the chatered rights of the company were expressly withdrawn from the consideration of the court by agreement of counsel.

That case arose in this way: Zimmer, an employee of the St. Louis, Iron Mountain and Southern Railroad, was indicted for failure to work on the public road. Now the charter of the Mississippi Valley Company exempts its servants from road duty. And the only question which could have been properly decided on that record was whether the reference clause in the charter of the Cairo and Fulton Company was operative to confer a like exemption upon the servants of the last named company. For the bill of exceptions in that case shows that it was expressly admitted that, if the Cairo and EnIton Company had ever enjoyed this exemption, then by virtue of the consolidation it had passed to the St. Louis, Iron Mountain and Southern Company.