10. Abandonment of.-A private corporation may abandon its charter, and dissolve its corporate capacity and entity;' except so far as its creditors have a right to object, and so far as its duties to the public, as conservators of a peculiar sort of highway, may tend to limit such right. As regards the rights of creditors, it will still in such case be regarded and treated in law as subsisting, and its last elected, or acting, officers and agents will be recognized as such for the purpose of serving process.* But in so far as the right to dissolve itself may be limited in law by its duties to the public as conservator of a public highway, the legislature may by law release it from such duties and limitation, and may allow a transfer of its powers, effects and duties into other hands; subject, however, to the rights of creditors. And so the legislature may allow a consolidation of two railroad corporations, by the merger of the one into the other, whereby the one so merged loses its corporate existence. Such merger works with it a dissolution-destroys the actual, (or de facto), identity of both, but preserves the legal identity of the latter. The company so merged, that is, all its members, pass into and become members of the company into which it is merged. All its corporate privileges and property become vested therein, and all the liabilities of the extinct company become chargeable against the corporation into which it is merged.' By such merger the company merged loses its legal identity, its legal entity and corporate existence; it can therefore no longer have any corporate recognition." If to such a proceeding the Lauman v. The Lebanon Valley Railroad Co., 30 Penn. St. (6 Casey) 42. The taking up of part of a line of road does not amount to an abandonment of other parts of the line still operated by the company: City of Columbus v. Columbus & Shelby R. R. Co., 37 Ind. 294, 3 Am. Ry. Repts. 70. And agreeing with the proper city authorities for a postponement of the laying of their track for the period of ten years, will not amount to an abandonment: McNeil v. Chicago City Ry. Co., 61 Ill. 150, 12 Am. Ry. Repts. 457. 2 Lauman v. The Lebanon Valley R. R. Co., 30 Penn. St. (6 Casey) 42. 3 Lauman v. The Lebanon Valley R. R. Co., 30 Penn. St. (6 Casey) 42. Lauman v. The Lebanon Valley R. Lauman v. The Lebanon Valley Lauman . The Lebanon Valley R. R. Co., 30 Penn. St. (6 Casey) 42, 45; State v. Bailey, 16 Ind. 46. 8 Lauman r. The Lebanon Valley R. R. Co., 30 Penn. St. (6 Casey) 42, 45; State v. Bailey, 16 Ind. 46. law and a legal majority of the respective corporations consent, and the same be effected by those authorized to do so, a single member of either can not object thereto in law.' Yet a stockholder in the company merged who dissents to the merger, and to becoming a member of the other company, can not be compelled to become a member of, or stockholder in, such other company against his will. The merger works a dissolution of his company, and thereby a change in the form of the interests of its members, by destroying the stock, and substituting in lieu thereof the legal interest or property which the stock before such merger represented; which interest being indivisible, and being transferred by the merger to the other company, thereby destroying such dissenting member's stock, he has a right to compensation therefor before such proceeding may take place; and to secure him therein an injunction against perfecting the merger without such compensation is allowable." Forfeiture of charter.-Although a charter right of a corporation may not be arbitrarily invaded or abolished by the legislative power of a state, yet an act of assembly providing for such a forfeiture on condition of acquiescence therein, or consent thereto, given by all the stockholders, is not necessarily void for unconstitutionality; but will have the effect of creating such forfeiture, if assented to and accepted by a majority of the stockholders. Such a proceeding, when consented to by the corporation, or done with its approbation and consent, does not violate the constitution by impairing the obligation of a contract." We apprehend, however, that such transaction between the state and the stockholders must be made in good faith, and for some cause for which a like forfeiture might be enforced upon the company, and not to the prejudice of the creditors of the corporation. The corporation can no more despoil its creditors of the right to the benefit of its property in satisfaction of its debts, by a voluntary surrender thereof to the state, than to an individual; and a charter right or franchise is, in its character, property, presumptively possessing a value.' But when the charter or franchise is granted by act of the legislature, with a clause therein declaring the same subject to be forfeited unless certain conditions be performed within a limited time, then in case of a failure to comply with the conditions of the grant, the charter becomes forfeited by the legislative enactment, and such law is not subject to any constitutional objection as interfering with, or encroaching upon, the province of the judiciary. No adjudication of a forfeiture by the courts is required in such cases. But the legislative department may treat the same as forfeited, and may, by statute, grant the same to another 2 Ordinarily, however, a forfeiture of charter rights can only be declared and established by judicial proceedings directly in 1Oakland R. R. Co. v. the Oakland, Brooklyn & Fruit Vale R. R. Co., 45 Cal. 365; Powell v. N. Mo. R. R. Co., 42 Mo. 63, 69; Goodwin v. McGehee, 15 Ala. 232; Bedford R. R. Co. v. Bowser, 48 Penn. St. (12 Wright) 29, 37. But see Silliman v. Fredericksburg, Orange & Charlottesville R. R. Co., 27 Gratt. 119, 17 Am. Ry. Rep. 157, that under a charter provision for forfeiture, the state takes the property and franchises free from any trusts. Persons acquiring such subsequent interests are held to have notice of the terms of the act authorizing the creation of the trust under which they claim. In this case no money was expended on the road, or interest paid: which, it was held, afforded a strong presumption that the company received no money for the bonds issued. The plaintiffs, therefore, were not innocent purchasers for value, or without notice. 2 In re Brooklyn, Winfield & N. R. R. Co., 72 N. Y. 245, 75 N. Y. 335, 19 Hun, 314, 55 How. Pr. 14; Oakland R. R. Co. v. The Oakland, Brooklyn & Fruit Vale R. R. Co., 45 Cal. 365; La Grange & M. R. R. Co. v. Rainey, 7 Coldw. 420; Kennedy v. Strong, 14 John. 129; United States v. Grundy, 3 Cranch, 351; State v. Clinton & Port Hudson R. R. Co., 4 Robinson (La.), 445; Sturges v. Vanderbilt, 73 N. Y. 384; Brooklyn Steam Trans. Co. v. Brooklyn, 78 N.Y. 524. In Wisconsin it is held, that a charter to construct and run a railroad between two termini, is forfeited by taking up and abandoning the road between the same; and that power to change the route between such points does not confer the right to change said termini or either of them; and that if changed, it works a forfeiture: Att'y-Genl. v. West Wisconsin Ry. Co., 36 Wis. 466, 9 Am. Rw. Reps. 141. stituted for that purpose; and the method is by quo warranto. It can not be done incidentally in collateral proceedings. It is not a ground for forfeiture of a charter of a corporation that it accepts a charter also from another state for a like purpose, any more than it is cause for forfeiture of a patent right obtained from one sovereignty to obtain a like one for the same invention from another sovereignty. The corporation does not divest itself of its allegiance, or transfer the same, by accepting a charter from another state. It can not by such acceptance throw off the obligations that rest upon it. Nor can its new relations, if there be in such case any relation or privity, shelter or excuse it from the performance of its original obligations under the old one, or from the consequences of a violation thereof. Therefore, as the fact of being incorporated in another state can not harm, or militate against, the interest or rights of the state that created it, and inasmuch as the courts thereof will enforce these rights, just as if no other act of incorporation had been granted to it by the neighboring state, it follows that the acceptance of such other act of incorporation is no cause of forfeiture of its original franchise. Such corporations are distinct and separate legal entities, although their corporate names and purpose be the same.' 'Bruffett and others v. Great Western R. R. Co., 25 Ill. 353, 356; Kent's Com. Vol. 2, 305; Danbury & Norwalk R. R. Co. v. Wilson, 22 Conn. 435, 449, 452; Matter of Petition of N. Y. Elevated Ry. Co., 70 N. Y. 327, 19 Am. Ry. Rep. 152; Sturges v. Vanderbilt, 73 N. Y. 384. 2 Matter of Petition of N. Y. Elevated R. R Co., 70 N. Y. 327, 19 Am. Ry. Rep. 152; Danbury & Norwalk R. R. Co. r. Wilson, 22 Conn. 435, 449, 452; Cleveland, Painesville & Ashtabula R. R. Co. v. The City of Erie, 27 Penn. St. (Casey) 380; N. Jersey Southern R. R Co. v. Long Branch Com'rs, 39 N. J. 28, 14 Am. R. W. Reps. 211; Aurora & Cincinnati R. R. Co. v. City of Lawrenceburgh, 56 Ind. 80, 18 Am. Ry. Rep., 136; Same v. Miller, Id., 18 Am. Ry. Rep. 144; (and the pendency of quo warranto proceedings to procure a It is not like the case of a forfeiture, on the ground that the company was organized to do an illegal act, can not affect or delay the decision in a prior proceeding to enjoin the company from further prosecuting the purpose for which it was organized. A. & C. R. R. Co. v. City of L.) Denver & Swansea Ry, Co. v. Denver City Ry.Co.,2 Col. 673, 20 Am. Ry. Rep. 339; Hamilton r. Annapolis & E. R. R. R. Co., 1 Md. Ch. 107; Laflin & Rand P. Co. v. Sinsheimer, 46 Md. 315; Chubb v. Upton, 95 U. S. 665; Lehman v. Warner, 61 Ala. 455. 3 Comm. . Pittsburg & Connell ville R. R. Co., 58 Penn. St. 26. 4 Commonwealth v. Pittsburg and Connellsville R. R. Co., 58 Penn. St. 26. Allegheny County v. Cleveland & Pittsburg R. R. Co., 51 Penn. St. (1 P. F. Smith). 228; Ohio & Miss. R. R. Co. v. Wheeler, 1 Black, 286. joint act of incorporation of a company in two or more states, created by the concurrent legislative enactments of each state, each made in reference to the other, and with a view to an interstate corporation and work of inter-state improvement: whereby the corporation becomes a legal entity in each, and the respective legislative acts of incorporation become a compact between such states themselves, and with the corporate body thus created.' The forfeiture of a charter may be waived by implication on the part of the state. Thus the passage of a legislative act conferring upon a railroad company certain privileges and powers, the exercise of which is inconsistent with a forfeiture of its charter, then in point of time within a few days of becoming forfeited, is holden to have been an indefinite waiver of such forfeiture, and, by a necessary implication, to have continued its charter in full vigor for an indefinite period of time." In the case of Foster v. Fitch and others, here cited from 36 Connecticut, the charter of the New Haven & Derby Railroad Company contained a provision requiring the company to complete its road in a given time, or else in default thereof that the charter should be void. When the specified time was within a few days of expiring, the legislature passed an act authorizing the company to issue its bonds to a large amount, to be negotiated and used in the completion of the road, and to be paid at a far distant point of time; the payment to be guaranteed by the city of New Haven. It was held by the Supreme Court of the State, that this act of the Assembly repealed by implication the clause of forfeiture contained in the original charter, and continued the corporate capacity of the railroad company for an indefinite period of time. That court say, PARK, Justice: "We think it is clear that the act repeals the ninth section of the charter by impli cation. That section had performed all the good it could accomplish. The road was far advanced in its completion. It was for the benefit of the state that it should be completed. No good could result from its non-completion, and the act in question intended that it should be completed." 1 Brocket v. Ohio & Pennsylvania R. R. Co., 14 Penn. St. (2 Harris) 244; Cleveland & Pittsburg R. R. Co. v. Speer, 56 Penn. St. 325. 2 Foster v. Fitch and others, 36 Conn. 236; Matter of Petn. of N. Y. Foster v. Fitch and others, 36 |