60 Ga. 268 | Ga. | 1878
The Code of Georgia went into effect on the first of January, 1863. In section 1651, it declares that “Persons are either natural or artificial. The latter are the creatures of the law, and except so far as the law forbids it, subject to be changed, modified or destroyed, at the will of their creator ; they are called corporations.”
And in section 1682, it declares that, “In all cases of private charter's hereafter granted, the state reserves the right to withdraw the franchise, unless such right is expressly negatived in the charter.” As construed by this court in 54 Ga., 401, these provisions reserve to the state the power to modify, as well as the power to destroy — the power to maim, so to speak, as well as the power to kill; and a corporation preferring death to mutilation, has the resource of suicide; that is, it may surrender its charter. “ A corporation may be dissolved by a voluntary surrender of its franchises to the state.” Code, §1686. “ Private corporations heretofore created without the reservation of the right of dissolution, and where individual rights have become vested, are not subject to dissolution at the will of the state.” Code, §1683. In the year 1847, the Savannah and Albany Railroad Company was chartered for the term of thirty years.
If the consolidated company had borne a different name from that of either of the original companies, it would probably have been recognized at once as a new creature; but bearing the same name as one of them, a sort of puzzle is presented. Have we the same old corporation, or a new one with the old name ? The name is suggestive, but not decisive ; for, to be a person, a name is not enough, there must be life. Though corporate life is a pure fiction, as is the whole corporate entity, yet the law in its powerful imagination (for the law is a great poet) intensifies the fiction into reality. In contemplation of law, life is no less essential to artificial persons than to natural persons. Bodies corporate are not dead bodies, but living persons. "When they die they are annihilated. Among artificial persons there is no resurrection from the dead; so that a new life always supposes a new person. In endeavoring to establish the identity of a corporation, the real problem, then, is one concerning life, not a mere question about names. It is certain that .before consolidation there were two corporate lives, and that since, there has been but one. The possible modes of this numerical change are only three; in one of them it must have taken place. I give to each of them such appellation as seems to me appropriate, without being sure that it is the best that could be chosen. First, by merger, or the extinction of one corporation, and the absorption of its stock, assets, etc., by the other. Examples of this mode may be seen in 30 Penn., 46; 15 Wallace, 460, and 92 U. S., 665. Second, by coalescence, or the vital union of the two corporations, ¿either being extinguished, but their existence becoming .joint and ceasing to be several. There may be examples of this mode, but I am unable now to cite any. Third, by vital succession, or the extinction of both original corporations and the creation of a new one. Examples of this mode are furnished in 10 Howard, 376; 16 Ind., 172; 1 Wall., 40; 18 Ib., 206; 26 Ohio, 86, and 95, U. S.,
It is not necessary to consider here any qualified existence for the purpose of responding to the claims of creditors. 40 Ga., 706. The act of April, 1863, declares “that nothing herein contained shall relieve or discharge either of said companies from any contract heretofore entered into by either, but this company shall be liable on the same.” Another provision of the act is, “ that the several immunities, franchises and privileges granted to the said Savannah, Albany and Gulf Railroad Company, and the Atlantic and Gulf Railroad Company, by their original charters and the amendments thereof, and the liabilities therein imposed, shall continue in force, except so far as they may be inconsistent with this act of consolidation.” The meaning of this latter provision is, that the immunities, franchises and privileges referred to shall be vested in the new' company, and that upon it shall rest the same liabilies as were imposed upon the oi’iginal companies, by their-respective charters and the amendments thereto. In other words, the charters, of the original companies and the amendments thereto, are made the measure of the charter immunities, franchises, privileges and liabilities of the consolidated company. Thus the Atlantic and Gulf Railroad Company of 1863 had granted to it whatever was granted to the Atlantic and Gulf Railroad Company of 1856, and whatever was granted to, the Savannah, Albany and Gulf Railroad Company. Let it be conceded that one of the immunities so granted in 1863 to the present company was exemption from taxation beyond one-half of one per cent, on net income, what is the result \ The grant was qualified- by the general provisions of the. Code, and could be withdrawn unless, the. right to withdraw, was denied by an express negative, in-the act making the grant. It is .obvious that no such denial is contained in the act. There are no negative words whatever, the words being “that,the several immunities,.franchises and privL
Judgment reversed.