Wright v. Milwaukee & St. Paul Railway Co.

25 Wis. 46 | Wis. | 1869

Paihe, J.

The plaintiff seeks to compel the defendant to pay certain bonds issued by the town of Water-town in 1853, in aid of the Milwaukee , & Watertown railroad. The facts upon which this liability is asserted are, that, after the bonds were issued and their payment guarantied by the Milwaukee & Watertown Eailroad Company, that company became consolidated, in pursuance of legislative authority, with the Milwaukee & La Crosse Eailroad Company; that the consolidated company subsequently sold what was then known as the Watertown division, which included what had been previously owned by the Milwaukee & Watertown company, to the Madison, Pond du Lac & Lake Michigan Eailroad Company, which, after sundry, changes of name, sold the same to the defendant. It may be conceded that, upon the consolidation, the existence of both of the original companies was merged in that of the consolidated company; and that the latter became substituted for each, and liable for its debts. ' The question then is, whether, upon the sale by the consolidated company of its Watertown division, together with its franchises, the purchaser became liable for any of the existing debts of the vendor, not constituting any lien upon that part of the road purchased ?> It is difficult to imagine any solid ground upon which such a liability could be asserted. Of course, a corporation does not, any more than a natural person, by merely changing its name, either lose its existence or extinguish its indebt-édness. Neither does it, any more than a natural person, by selling a portion of its property, or even the whole of it, impose upon the purchaser’any liability for its general .debts. And the latter is all that appears, by the allegations of the complaint, to' have been done in this case.

After the alleged consolidation, the appellant’s counsel themselves contend that the existence of the Milwaukee & Watertown Railroad Company was merged in that of the newly-created, 'consolidated Milwaukee & La Crosse Railroad Company. The latter was the only corporate existence remaining. It was composed of, and substituted for, both of the original ’companies. It had power, by its charter (Laws of 1852, ch. 198, sec. 8), to lease or sell to any other railroad company the whole or any part of its road or, branches. After the consolidation, its power to sell under this section was as applicable to that part of the road then called the Watertown division as to any other, and there is no reason to say that a sale of that division, under this section, had any different effect, so far as tlie liability of the purchaser for its general, unsecured, debts was concerned, than would the sale of any other portion of its road. The fact that the particular debt in question may have been created by the company which originally owned the portion soid does not create any such reason. That fact did not preserve the separate existence and identity of such original corporation,'nor prevent its complete merger in the new. After such merger,' these debts stood, therefore, merely as the general, unsecured personal debts of the consolidated Milwaukee & La Crosse company.At law they all stood upon the same footing ; and the sale of the Watertown division no more rendered the purchaser liable for the debts created by the original Watertown company, than would the sale of the road from Portage to Milwaukee, through Beaver Dam, have rendered the purchaser liable for the debts of the original Milwaukee & La Crosse company. The answer to all such claims is, that the debts were merely the personal debts of the consolidated Milwaukee & La Crosse company, and that this company did not, by selling a part of its road, impose any liability on the purchaser to pay its debts. Indeed, this is so obvious, that the counsel could make no claim to the contrary except by overlooking the obvious nature of the transaction, and assuming that by this sale the existence of the original Milwaukee & Watertown Railroad Company was in some way revived, and transferred to the purchasing-company. But there is no ground for such an assumption. According to their own argument, the separate existence of that original company had long before been extinguished by its merger in the consolidated company. And it certainly will not be pretended that the corporate existence of the latter was transferred to the company that purchased its Watertown division. It still remained with its main road extending two hundred miles through the state, and just as liable for all its personal debts as before.

The allegations of the complaint show nothing more than the sale by an existing corporation of a specific portion of its road. It is true the averment is that this part of the line was sold “with all its depots, shops, rolling stock and franchises.” But the only interpretation of that is, that the franchise of operating that part of the road was sold with it. The distinction between the franchise of constructing and operating a railroad, and the franchise of being a corporation, and of contracting, suing and being sued as such, is well established, and is referred to by. the appellant’s counsel. And it seems entirely obvious, that, upon the allegations of this complaint, it was only the former that passed to the purchaser of this road. ■ The franchise to be the Milwaukee & Watertown Railroad Company could not have passed, because it was not then in existence. It had been merged long before in that of the consolidated company. The latter did not sell, nor purport to sell, its franchise of corporate existence, and the purchasing company did not buy, nor desire to buy, any franchise of corporate existence,^ because it, already had that under an independent charter of its own. The transaction was nothing more than what was really contemplated by section 8 of the charter of the Milwaukee & La Crosse Company, before referred to, being a sale, by an existing railroad company, of a portion of its track, with its appurtenances, including the franchise of operating it, to another existing railroad company; both companies retaining precisely the same, corporate existence they had before, but one parting with,, and the other acquiring, a specific piece of property, with the franchise necessary to its use.

The circuit court properly sustained the demurrer, arid the order must be affirmed.

By the Court. — Order affirmed.