Page:St. Louis, Iron Mountain & Southern Railway Co. v. Berry (41 Ark. 509).pdf/3

41 Ark.] eleventh section of the charter, whenever it should pay "ten per centum per anum." By consolidation, the consolidating companies are extinguished and a new corporation is created. McMahon v. Morrison, 16 Ind., 172; Lauman v. Lebanon R.R. Co., 30 Penn. St., 42.

This was not authorized by the tenth section of the charter, which gave the company power to make joint stock with any other railroad, "and to form one board of directors for the management of their (not its) affairs."

Where the legislature gives its consent to the consolidation of corporations, the effect is to dissolve the former corporations and create a new corporation upon such terms and conditions as may be prescribed by the act of consolidation. McMahan v. Morrison, 16 Ind., 172. And the new consolidated corporation takes subject to the constitutional provisions in force when the consolidation takes effect. State v. Sherman, 22 Ohio S., 411; Central Railroad Company v. State, 54 Ga., 402; Atlantic R.R. Co. v. State, 55 Ga., 312; State v. Northern C. R.R. Co., 44 Ind., 165; Shields v. Ohio, 26 Ohio St., 90; State v. Atlanta R.R. Co., 60 Ga., 269; Atlanta R.R. Co. v. State, 63 Ga., 485.

It is argued that the plaintiff R.R. Co. cannot be taxed without impairing the obligation of its contract with the State.

The question thus presented is a federal one, and the supreme court of the U.S. has decided the question in language that silences all debate, in Shields v. Ohio, 95 U.S., 319; a case in no wise distinguishable in principle from this. It differed from this case in two respects—
 * 1) The acts permitting the consolidation were passed before the adoption of the new constitution of Ohio, of 1851.
 * 2) The provisions of the new constitution were less stringent than those of our constitution of 1868.