Page:St. Louis, Iron Mountain & Southern Railway Co. v. Berry (41 Ark. 509).pdf/13

41 Ark.] class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens." Art. I, Sec. 18.

"The property of corporations now existing or hereafter created shall forever be subject to taxation the same as property of individuals." Art. V. Sec. 48.

Now, if the act of 1868 was the sole authority for the consolidation at the time that it actually took place, there can be no doubt that the plaintiff in this suit took the Cairo and Fulton charter subject to the constitutional provisions then in force. In that view the present case is not distinguishable from Shields v. Ohio, 95 U.S., 319; Railroad Co. v. Georgia, 98 U.S., 359; and L. & N. R.R. Co. v. Palmes, 3 Supreme Court Reporter, 193. In the last of these cases it was said "that in case of corporation created by consolidation, the powers of the new company did not pass to it by transmission from its constituents, but resulted from a new legislative grant that could not transcend the constitutional authority existing at the time it took effect. The exemption was not impressed upon the property itself, into whosesoeverwhosoever [sic] hands it might afterwards come, following the title like an easement or covenant running with the land.  The grant is to a person in respect of a thing.   There must always be a person capable, not only of receiving the title, but also of accepting the conditions accompanying it, and which constitute the exemption; otherwise the conditions become impossible and void.  After the adoption of the constitution of 1868 there could be no corporation created capable in law of accepting and enjoying such an exemption."

There is another consideration which leads to the same result. The exemption of the Cairo and Fulton Company was not absolute and perpetual, but conditional and qualified. No tax was to be