Page:St. Louis, Iron Mountain & Southern Railway Co. v. Berry (41 Ark. 509).pdf/4

512 Yet the supreme court of the U.S. held that the privileges granted in the original charter, in so far as inconsistent with the constitution of 1851, had ceased to exist.

It is insisted that this question was decided the other way in Zimmer v. State, 30 Ark., 677. This question did not and could not arise in that case.

The remark of the court as to the effect of the consolidation in the chartered rights of the company were the merest dicta, and are in reality no part of the decision.

The doctrine laid down in Shields v. Ohio, has been affirmed in R.R. Co. v. Maine, 96 U.S. 499; a very strong case for us. And to the same effect is R.R. Co. v. Georgia, 98 U.S. 359.

The recently decided case of Louisville R.R. Co. v. Palmes, 3 S.C. Reporter, 193, merits special attention. The facts in that case are almost identical with the case under consideration. The court, reaffirming Shields v. Ohio, declared "that in cases of corporations 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."

But, even admitting we are wrong in all the foregoing propositions, the result is still the same.

The ten per cent. mentioned in the charter of the C. & F. R.R. Co. relates to "the amount invested in building and equipping it." St. L. R.R Co. v. Loftin, 30 Ark., 710.

Plaintiff offered no admissible evidence of costs of construction and equipment. It did not even offer its books. If it had done so, they could not be regarded. Burt v. Byers, 10 Ark., 398; State Bk. v. Barber, 12 Id., 775; Same v. Fowler, 15 Id., 160; Sessions v. Peay, 19 Id., 266.

Estimate made second hand from the books by plain