In Morgan v. La., 93 U. S., 217, 23 L. ed., 860, while it was held that an exemption from taxation does not pass under the term "franchise," the case of Trask v. Maguire, 18 Wall., 391, 21 L. ed., 938 is cited with approval, in which it does pass under the term "immunities"; So, also, is Humphrey v. Pegues, 16 Wall., 244, 21 L. ed., 326, in which the same thing is held. As both the consolidating Companies had the exemption in their charters, the consolidated Company continued to have it, unless the case can be taken out of the class of cases just cited, and it be shown that these decisions do not apply to it.

But it is further claimed, that, by the merger in the Maine Central Railroad Company, under the Act of 1873, of certain other companies, which confessedly did not have this immunity from taxation, the Company lost all its immunity from taxation, if it had any.

This is inconsistent with the fact that the charter of the Company, by virtue of which it controls any given portion of its railroad, is the charter of the Company which originally constructed that particular portion.

In other words, the present charter of the Maine Central Railroad Company consists of the several charters of the original Companies which are now consolidated and merged into the present Company. Its rights, powers and privileges, as to any particular portion of its railroad, must be determined from these charters and not from the act of consolidation. Its right to prescribe rates of toll, to maintain its railroad, to cross highways, to hold the estate taken for the construction of its railroad, and the manner in which these various rights may be exercised necessarily depend upon the original charters.

R. R. Co. v. Va. (ante, 310).

But it is also claimed that, by accepting the Acts of 1856 and 1873, the Company subjected its charters to the Act of 1831, giving the Legislature power to alter and amend them at pleas

ure.

The Statute of 1831 was in derogation of the common law and, therefore, must be strictly construed.

1. The Statute of 1831 is limited, in its effect, to Acts of incorporation; and we hold that the Act of 1856 was not an Act of incorporation, within the meaning of the term in the Statute of 1831.

An Act of incorporation was then understood to be the granting of a franchise from the State to a body created by its authority. The Act of creation and grant was called a charter.

But in this case, the 1st section (Webb's Railroad Laws, 300) provides that the corporations are authorized, at any time, to consolidate such companies into one corporation.

Sections 2 and 3 provide for making the agreement of consolidation, and its ratification by the stockholders.

Section 4 (p. 301) provides that, on the filing of the agreement, etc., "The said corporations so making said agreement shall be consolidated, and altogether constitute the new corporation provided for in said agreement."

Section 5 (p. 302) provides that, upon the election of the Board of Directors, "All and

corporations so consolidated, in and to every species of property, real, personal and mixed, and things in action thereunto belonging, shall be deemed to be transferred to and vested in such new corporation without any other deed or transfer."

The Act is not an Act of incorporation, because it does not create a body corporate, but merely authorizes two bodies corporate, already existing, to unite in one; and does not grant a franchise, but merely provides that, by the consolidation, the franchises of the two corporations shall thereby, eo instanti, be transferred to and vested in the consolidated corporation.

It is true that the Act uses the term "new corporation," but it uses the term to distinguish the consolidated corporation from those composing it. In that sense it is a new corporation, but not in the legal sense.

No new franchise was granted.

Morgan v. La., 93 U. S., 217, 223, 23 L. ed., 860, 861.

No franchise of the consolidated Company can be named that did not come to it from one of the original corporations, and we seek in vain, throughout the Act of 1856, for a single franchise, as above defined, created or conferred by that Act.

But we hold also, that even if the Act of 1856 can be held to be an Act of incorporation, within the meaning of the Statute of 1831, the immunity from amendment of these charters, contained in section 17 thereof, continued in the new Corporation; and that the case of Shields v. Ohio, decided at the present Term (ante, 357) does not conflict with, but rather sustains, this proposition.

Let it be remembered that the Statute of 1831, relied upon by the State in this case, is not, like that in the Shields case, a constitutional provision; but that it was just as competent for the Legislature of 1856 to grant a charter with immunity from legislative control, as it was for the Legislature which granted these charters. In the Ohio case, the Legislature could not have done it, if it would; and if the language of the Act was expressly to that effect, it must have been held to be in conflict with the Constitution and, therefore, void.

Applying this language of the court to the present case, and admitting, for the sake of giving the opposite argument its full force, that this was a grant creating a new Corporation, the grant is of the two old charters as they stood with the 15th and 17th sections still in them.

By section 4, of the Act of 1856, it is expressly provided "That nothing in this Act shall be construed as extinguishing said consolidated Corporations, or annulling these charters." See, Webb's Railroad Laws, 301.

It goes further, and provides that they shall be "Regarded as still subsisting so far as their continuance for the purpose of upholding any right, title or interest, power, privilege or immunity ever possessed, exercised or enjoyed by either of them, may be necessary for the protection of the creditors, etc., * * * or of such new corporation."

These provisions bring the case within the scope of the decision in the Georgia case, 92 U. S., 23 L. ed., 757, rather than of the decision in the Shields case.

A corporation can be as easily created by the union of corporations as by the union of natural persons. Such a corporation is as distinct an entity, as distinct and different from those of which it is composed, as other corporations are distinct from the natural persons of whom they are composed. The Legislative Act, creating a new corporation by the union of old corporations, is a new Act. It is an Act distinct from any Act incorporating the old Corporations. The new Corporation is created by the new Act. It has no existence prior to that Act. It has an existence after that Act.

Bishop v. Brainerd, 28 Conn., 289; Ins. Co. v. Hobart, 2 Gray, 543; and in Com. v. R. Co., 53 Pa., 9.

The Maine Central Railroad Company that came into existence in 1862, was not merely the Androscoggin & Kennebec Company, plus the Penobscot & Kennebec Company. It was not a revival nor a continuation of those Corporations. By the very terms of the Act creating it, the Act of 1856, it was to be one Corporation. It is called in that Act a new Corporation. It was to take a new and different name. It was to have a single and different Board of Directors. In the 4th section is the express mandate that the two former "Shall together constitute the new Corporation." In the 5th section it was provided that all rights, franchises and property of the old Corporations "Shall be deemed to be transferred to and vested in such new Corporation." The distinct and independent existence of the new Corporation is made apparent in the proviso in the 4th section, that the old Corporations shall retain an existence, although in an attenuated form, for a single purpose: the protection of their creditors.

This new Corporation derived its existence from the only source that could give it life the Legislature. No acts of the two prior Companies could have created it. No transfers of franchise are recognized by the law until the Legislature makes the transfer. This new Corporation was not organized until 1862, but the sole source of and authority for its existence was the Legislative Act of 1856. That Act made its being possible. It was and is the very breath of its nostrils. Assuming that it can be repealed, such repeal would dissolve it. The simple words, "The Act of 1856 is hereby repealed," would puff away into air this new Corporation. The franchise of this new Corporation was not conferred upon it by the old Companies. It was conferred by the Legislature. The old Corporations were incorporated in 1845; the new one in 1856.

nor directors. These old Companies could not give their franchise of their own will to the new Company. They gave up their franchise, their charters to the Legislature, to be by it conferred upon the new Corporation. The franchise had to go back to the Legislature to be born again. This new Corporation was a new birth, and we believe this time without the sin of exemption from taxation.

McMahan v. Morrison, 16 Ind., 172; Shields v. Ohio (ante, 357); State v. Sherman, 22 Ohio, 411; Clearwater v. Meredith, 1 Wall., 25, 40, 17 L. ed., 604, 608.

It is evident, therefore that we must look into the Act of 1856 incorporating the Maine Central Railroad Company, for any contract that is to prohibit the State from subjecting this Corporation to its due proportion of taxes. The counsel can only cite the following clause in the 4th section: "And such new Corporation shall have all the powers, privileges and immunities possessed by each of the corporations entering into said agreement." This language does not come up to the standard established by the authorities. It does not at once break down all adverse presumptions, and compel assent to the proposition of the existence of such a contract. It seems to require some argument, where argument should be supererogatory. We are asked to infer in a matter where inference has no place-but only explicit, unequivocal assertion. There is no reference to exemption from taxation.

East Tenn., Va. and Ga. R. R. Co. v. Hamblen Co., 4 Law and Eq. Rep., 465.

It will not avail to point to the limitations in the Acts of 1845, incorporating the old Companies. Reference to a limitation in some other Act is not sufficient. No limitation elsewhere expressed will do. The limitation must not only be "express," but must be "inserted in the Act of incorporation." But in this Act of 1856 there is no such reference. No mention is made of any limitation in the prior Act. The words "powers, privileges and immunities," do not clearly and apparently include "limitations." They do not really include it.

Mr. Justice Field delivered the opinion of the court:

An Act of the Legislature of Maine, passed in 1874, provides for a tax upon the corporate franchise of every railroad company in that State, at the rate of one and one half per cent. upon its estimated value, determined in this wise: the Governor and Council of the State are each year required to ascertain the true market value of its shares, and estimate therefrom the fair cash valuation of all the shares constituting its capital stock on the first day of the preceding April. From this valuation are to be deducted the value of its real estate and other property subjected to local taxation, and, where its lines extend beyond the limits of the State, such portion of the valuation as is proportional to the length of that part of the lines lying without the State. Upon the value of the franchise thus determined the Governor and Council are to assess the tax; the assessment is to be certified by the Secretary of State to the Treasurer, and by him notice thereof is to be given to the Company. The tax thus assessed is to be in lieu of all taxes on shares of the

Company previously required by law; and, in case of non-payment, an action will lie for its collection.

The Maine Central Railroad Company was a Corporation of Maine in 1875, and the owner of a railroad in the State, and its franchise was assessed and taxed for that year under this statute. It is admitted that the provisions of the statute were in all respects complied with, and the required notice of the assessment given to the Company. The tax not being paid, the present action of debt was brought for its recovery. The Company pleaded in defense that the Act of 1874 was in conflict with the provisions of its charter, and also with the Constitution of the State and of the United States, in that it impaired the obligation of the contract contained 501] in the charter. Upon *an agreed statement of facts, the case was submitted to the Supreme Court of the State for its decision. That court gave judgment for the State, sustaining the validity of the tax; and the Company has brought the case here on writ of error.

The Maine Central Railroad Company was originally formed in October, 1862, by the consolidation of two distinct Corporations, the Androscoggin and Kennebec Railroad Company, with was incorporated in March, 1845, and had constructed a railway from Waterville to Danville in the State; and the Penobscot and Kennebec Railroad Company, which was incorporated in April, 1845, and had constructed a railway from Bangor to Waterville.

The charter of each Company required it to keep a regular account of its disbursements, expenditures and receipts, in a book, which was to be open at all times to the inspection of the Governor and Council, and any committee of the Legislature; and required its Treasurer, at the expiration of every year, to make, under oath, an exhibit to the Legislature of the net profits derived from the income of its road. It also provided that the real estate of the Company should be taxable by the towns, cities and plantations in which it lay, in the same manner as that of private persons, and its value be estimated in the same way; and that the shares of the stockholders should be deemed personal estate, taxable to them at their places of residence. It also provided that, whenever the annual net income of the Company amounted to ten per cent. upon the cost of the road and "its appendages, and incidental expenses," the directors should make a special report of the fact to the Legislature, "from and after which time" one moiety, or such other portion as the Legislature might determine, of the net income accruing thereafter, above the ten per cent., first to be paid to the stockholders, should annually be paid by the Treasurer of the Corporation, as a tax, into the Treasury of the State; and it declared that no other tax should ever be levied or assessed on the Corporation, or any of its privi1 leges or franchises, and that the charter should "not be revoked, annulled, altered, limited, or restrained, without the consent of the corporation except by due process of law."

The consolidation of these two Companies into the Maine Central Railroad Company was ef502] fected under an Act passed in April 1856, which authorized it upon the agreement of their directors, approved by the stockholders, prescribing the terms and conditions thereof,

the mode of carrying the same into effect, the name of the new Corporation, the number of its directors, the time and place of holding the first election, the amount of its capital, the number of shares of stock, and the manner of converting the shares of the capital stock of each of the Corporations into those of the new Corporation; and filing a duplicate or counterpart of the agreement in the office of the Secretary of State. Immediately afterwards, upon the election of the directors, the Corporations making the agreement were to be consolidated and, together, to constitute a new Corporation, by the name therein mentioned. The Act provided that the new Corporation thus formed should have "all the powers, privileges and immunities" possessed by each of the Corporations entering into the agreement, and be subject to all the legal obligations then resting upon them respectively; with a proviso, however, that it should not be construed as extinguishing the old Corporations or annulling their charters, but that they should be "Regarded as still subsisting, so far as their continuance for the purpose of upholding any right, title or interest, power, privilege or immunity, ever possessed, exercised or enjoyed by either of them may be necessary for the protection of the creditors or mortgagees of either of them, or of such new Corporation; the separate exercise of their respective powers and the separate enjoyment of their respective privileges and immunities being suspended until the protection of such creditors or mortgagees shall require their resumption, when such suspension shall cease, so far and for such time as the protection of such creditors or mortgagees may require."

Some years after this consolidation, by a law passed in 1873, three other railroad companies, at that time under lease to the Maine Central Railroad Company, were allowed to consolidate with it, upon the same terms and conditions so far as applicable prescribed by the Act of 1856, and such consolidation was effected in 1874.

It is upon the franchise of the corporation thus formed, upon the second consolidation, that the tax was assessed and levied for which the present action is brought.

The principal question for our determination is, whether the conditional and limited taxation, to which the two original Companies first consolidated were subjected, is extended to the present Corporation defendant after its second consolidation. As the Act of 1856, authorizing the first consolidation, conferred upon the new Corporation "all the powers, privileges, and immunities," possessed by each of the consolidating Companies, and the Act of 1873, by reference, adopts the same provisions, it is contended that the new Company is exempt from any other taxation than that to which they were subjected, at least, that so much of the road of the Company as originally belonged to those consolidating Companies is thus exempt.

It is not questioned by counsel on either side that the charter of a private corporation is a contract between the State and its corporators, and protected under the Constitution of the United States, like any other contract, [508 from legislation impairing its obligation. This has been so often decided, that its statement is only the repetition of an admitted legal principle. The only question for serious inquiry, where

legislation affecting the charter is the subject of complaint, is whether it does in fact impair the obligation of the contract; for there may be legislation touching the powers of the corporation which will not have that result. Nor is it questioned by counsel that the taxation, both in its mode and extent, may be so prescribed in the charter as to preclude any subsequent interference by the State with either. Repeated decisions of this court have so adjudged; though the right of one Legislature to bind its successors in the exercise of its power of taxation, which is an essential attribute of sovereignty, has met with frequent earnest dissent from a minority of the court.

The provision in the charters of the two original Companies was a clear conditional limitation upon the power of the State to tax them. Language could not be made more direct and positive. Only upon the annual net income received from the roads of the Companies above the ten per cent. paid to the stockholders could a tax be imposed by the State, and then only a portion of such net income could be exacted. "No other tax," said the charter, should ever be levied or assessed on the Corporations, or any of their privileges or franchises. So long as these Companies were distinct Corporations, only the tax thus prescribed could be imposed upon them. But, when they were merged in the new Corporation, their distinct corporate existence ceased, except so far as their existence might be necessary for the protection of their creditors or mortgagees, or those of the new Corporation. The conditions upon which the limitation of taxation was prescribed could be performed only while the Companies were distinct Corporations operating separate lines. Those Companies only were required to keep an account of their disbursements, expenditures and receipts, for the inspection of the Governor and Council, and committees of the Legislature. Their treasurers only were bound to render to the Legislature, at the expiration of every year, exhibits under oath of the net profits of their roads. Their directors only were called upon to make a spe509] cial report to the Legislature, *whenever their annual income amounted to ten per cent. upon the cost and expenses of their roads. It was only upon such report that the Legislature was to determine the portion of the income which should be received in lieu of other taxes. The new Company was subject to no such duty of keeping an account of the expenditures and receipts of the original lines; its directors were not called upon to make any report as to the income of such lines; nor was its treasurer required to make any annual exhibit of the net profits derived from them. The assets of all the Companies were intermingled; and continuous trains were run over the whole length of the several roads. It would have been impossible to show what would have been the profits of each road without the consolidation. Only an approximation to them would have been attainable; and that would have been based upon estimates more or less speculative in their character.

The consolidation of the original Companies was a voluntary proceeding on their part. The law made it dependent upon their agreement; and that law was presumably passed upon their

request, as they are named in it and they acted under it. Having thus disabled themselves from a compliance with the conditions, upon the performance of which the amount to be paid as a tax to the State could be ascertained, they must be considered as having waived the exemption dependent upon such performance. Their exemption was qualified by their duties, and dependent upon them. They incapacitated themselves from the performance of those duties, by a proceeding which they supposed would give them greater advantages than they possessed in their separate condition, and they thus lost their exemption. The new Company was not charged with the duties which they were to perform to the State, and by which the State was to be governed in its taxation, nor was the State under any obligation to accept a substituted performance from other parties. The provision in the Act authorizing the consolidation, that the new Company should have all the powers, privileges and immunities of the original Companies, must, therefore, be taken with the qualification that it should have them so far as they could be exercised or enjoyed by it, with its different officers and distinct [510 constitution. Where their exercise or enjoyment required other officers or a different constitution, the grant was to that extent necessarily inoperative.

The Maine Central Railroad Company was, upon the consolidation of the original Companies, a new Corporation, as distinct from them as though it had been created before their existence. The fact that the powers, privileges and immunities which they had possessed were conferred upon the new Company, so far as they could be exercised or enjoyed by it, in no respect affected its character as a distinct body. A new Corporation may be as readily created by the union of two or more Corporations as by the union of individuals; and its powers and privileges may as well be designated by reference to the charters of other companies as by special enumeration.

It follows that the limitation of the taxing power of the State to a portion of their net income prescribed in the charters of the old Companies ceased upon their consolidation into the Maine Central. When this new Company came into existence, it became subject to the provisions of the General Law of 1831, which declared that any Act of incorporation subsequently passed should at all times thereafter "Be liable to be amended, altered or repealed, at the pleasure of the Legislature, in the same manner as if an express provision to that effect were therein contained, unless there shall have been inserted in such Act of incorporation an express limitation or provision to the contrary." Although this provision could not bind any succeeding Legislature which might choose to disregard it, so long as it remained unrepealed, subsequent legislation not repugnant to it was controlled by it, and must be construed and enforced in connection with it. There was no limitation in the Act authorizing the consolidation, which was the Act of incorporation of the new Company, upon the legislative power of amendment and alteration, and. of course, there was none upon the extent or mode of taxation which might be subsequently adopted. By the reservation in the Law of 1831,