Page:The Green Bag (1889–1914), Volume 16.pdf/548

 Rh is at most a corporation dc facto, or perhaps only a business union of the several compan ies under a common name, the old corpora tions still exercising their several powers in their respective States in the name of the consolidation. It is clear that the constitu ent corporations do not necessarily or gen erally cease to exist. But it is certain that no corporation dc facto <can be recognized if there can be no corporation dc jure, and if they do cease to exist it must be because each State has so provided, which is not a natural interpretation, because neither State, in authorizing the consolidation, "can have intended to abandon all jurisdiction over its own corporation created by itself.'' But though the old corporations usually continue in existence, a new association of some sort is undoubtedly formed, a community of stock and interest between the companies; there is almost invariably a new set of books opened, new stock issued, new stockholders and new officers provided for the consoli dated company. This, it would seem, is sufficient to create a new commercial entity, and since it results from permission given by law the new entity constitutes a legal person. But this new person is not created by the law of any one State. Concurrent leg islation of all the States was essential to the completion of the consolidation. The new corporation is no more a corporation of one State than of the other, and as it cannot be created by the States jointly, it must be the anomalous association already considered,—• a separate corporate body in each State, all however being as it were federated together, and in many respects capable of acting as one. We must conclude then that when a num ber of corporations, created by different States, are allowed to consolidate by the States that created them, the constituent corporations may or may not be merged in the consolidated body and so lose their cor porate existence, this depending in each case upon the will of the State of charter; but that by the consolidation new corporations are formed, equal in number to the number of enabling States, and each empowered to act

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in connection with the others. The conso lidated corporation therefore does not differ in status from the corporation rechartered in another State than that which first created it. One more complication may ensue. A corporation formed in one State may be rechartered in a second State, and then con solidated with a corporation of a third State: what is the effect of the consolidation upon the rechartered corporation of the second State? Is it federated with the original cor poration still? And what if the original corporation is dissolved by merger in the ¡consolidated corporation? This question was raised by the case of Louisville Trust Company i'. Louisville. New Albany and Chicago Railway. An In diana corporation had been rechartered in Kentucky; and the Indiana corporation was then in accordance with legislation of both States concerned consolidated with an Illin ois corporation. It was argued that since the consolidated company succeeded to all the property of the original company, and since the Kentucky company had no rela tion with the consolidated company, it ceased thereafter to exercise its franchises. But Taft, Circuit Judge, said: "We do not perceive that this consolida tion creates any difficulty. The Kentucky corporation, having been once established, could not die except by its own act or that of the State which gave it being. Every thing it had acquired in the way of property remained in it after the consolidation of its constituent with the Illinois corporation. It was not and could not be ousted of its fran chises thereby.'' . . . From this opinion it would seem that upon the consolidation of the Indiana corporation with the Illinois corporation the rechartered corporation would ipso facto be come federated with the consolidated com pany; a result which could be prevented only by the affirmative action of the Kentucky Legislature, thus exercising its power over its own corporation. . . . One may, perhaps, on the authorities and the reason of the thing, reach the following