The Montgomery advertiser., 1906-03-11

which the thing shall be done ?--Bick- tSs very sea statute so it aS was 1 said a by the @ same judge In Nj. & c. V. Woods. SS Ala. es7, that. 1t prescribes conditions precedent to lawful consolidation. stockholder. The statute here. con- fArring on corporations the right to lease or. purchase railroads construct they had not without the statute. undertook to prescribe conditions which of course were for the protection of ckholders-minority stockholders, too, for majorities have natural means of caring for themselves, Ia confer ring power, however. apart from pre- scribing conditions of It's exercise, tho statute used terms of definite and fixed arrangement. It was required that any arrangement between two corpor ations whose properties were so con nected should be for their common benefit. consistent with, and calculated to promote the objects for which they were created. An effort is made In the last plea to show. that the arrangement was of that character But take 1t the arrangement" sanctioned by the statute must be of the same general character as the other contracts au- thorized. and that on the authorities and principles to which have hereto fore referred. 1t could not mean a mere gratuitous and informal surrender by one corporation of it's railroad and franchise to another, as appears to be the case here, even if it might be loose- ly said that such arrangements could he for their common benefit, consistent with and calculated to promote the objects for which they were created. The only authority l find for arrange none without statute. Is in Section 1169 of the Code which was enacted fifteen years ago. But the condition prece- dent to it's exercise is that all the n
 veying it's property and fran chisss to foreign corpora ton shall be. ownel by the foreign corporation. So the question Is. not necessarily whether the contract or arrangement was entered into In the observance of proper procedure, but whether it was an exercise of the pow CT granted My Judgment is that those the Louisville and Nashville Company and the South and North Company, but fail to show that 1t was q contract of the character permitted by the stat ute Is bad; and that the plea which shows the nature and particulars of the arrangement is bad, for that it afiirma- lively shows that it was not within the power conferred by the statute. In deed, 1t seems obvious to me that there has never been any effort or intention on the part of these two corporations to exercise the right and power con ferred by this statute, for they have exercised evident care 10 preserve m some sort the separate identities of themselves and their properties while arranging, for all practical purposes of their own, merger Of one Into the statute, relied on In pleadings, but ig- nored in the operation of these rail- roads was to permit the consolidation of railroad properties under one corpor- ate franchise. (Memphis and Charles ton Company vs. Woods, ss Ala, 63O.) The plea affords an inference that the Louisville and Nashville Company having acquired possession of the South and North Rall- road for construction, which was au- thorized by law. has been content to keep 1t for operation without author ity of law.
 State ought not to be permitted to prosecute this information because for more than thirty years the defendant, believing. and adversely and notori- ously asserting that 1t had the right, has been operating the South and North Railroad. spending millions in It's main ienance and betterment and in the con struction of feeder lines and auxiliary enterprises. protes.ing the South and North Company against Bankruptcy and ruin. creating for the State a great system of railroads operated in the best way. and thus developing the State, and contributing to tho prosper ity and well-being of its people. It has appeared to me that references to
  been unsatisfactory; 1t has not been assigned to any special place in juris- prudence as perhaps it might have been. If it means statutory limitation, there is none If 1t means estoppel by larhes, 1t seems to be determined In this State that the State cannot be estopped. Tt is a well-settled doe tFine. resting not on notions of mere prerogative but upon the weightiest considerations of public policy, that the State nor any of Its governmental .tn d nN at taFt h.n laches of public officers" Jackson County vs. Rerrick, TIT Ala. 366. If the facts outlined above were Intended to put the defendants right to operate the road upon the presumption of the grant of @ franchise in analogy to the franchise to be a corporation by D e. considered. The analogy in law seems to me 10 be perfect The question is whether the facts justify 1t in this case. A corporation may exist by pre- scription. although 1t cannot exhibit a charter. There is no doubt. says Kent, that corporations, as we'll as other pri-' vate. rights and franchises, may exist Tn this country by prescription. Ang. X A. Corp. 70. They exist by presunnf- tive evidences. If Judge Thompson, considering when corporate existence will be presumed. says. We may com mence this discussion with the most attenuated thread of legal doctrine, the presumption Of right doing. Men are presumed to do rightly what they do. very face of their proceedings" Thomp Corp. 496. The, principle Is similar to that which creates title to real property which has been held by long continued exclusive possession. by the presumption of a grant. Stated i'm other language. when there has been corporate body. de facto, for con least to be such, and holding and en- toying property as Q corporation, it will be presumed that all merely formal radnfgffag fO tha Atfa rraafRaV, aF rnr-