80 § 207. Corporate powers- Consolidation. In certain of the States there are constitutional provisions forbidding the consolidation of telegraph lines, the holding a controlling interest in, or the acquiring competing lines, also that railroads shall not consolidate nor control each other's competing or parallel lines.8 Where, after a new constitution has been adopted, a railway, chartered prior to such adoption, is consolidated with other roads or accepts new privileges, all contracts, privileges and franchises conferred are subject to the provisions of the new constitution.81 Consolidation generally operates under the power conferred as a merger of the old companies into a new one. The authority, therefore, as in case of a sale or lease, must be granted by the legislature. It does not arise by implication.82 But by consolidation corporations do not become extinct, so as to be unable to wind. up their business, and one of the old corporations acting in pursuance of a previous vote of its executive committee, may by its president and secretary, after consolidation, assign the legal title to a patent in writing to the new corporation.83 80 3 Cook on Corp. (4th ed.), pp. 2362-2660, compilation of constitutions and statutes as to corporations. 81 San Antonio Traction Co. v. Altgelt, 200 U. S. 304, 26 Sup.Ct.case as to rate of fare. 82 Morawetz on Priv. Corp. (ed. 1882), §§ 543-558; Booth on St. Rys. (ed. 1892), § 429; 3 Cook on Corp. (4th ed.), §§ 892, 894–897; Topeka Paper Co. v. Oklahoma Pub. Co., 7 Okla. 220, 54 Pac. 455. As to consolidation of street railroads, under Railroad Law of New York, see Wells on Railroad Corp. in N. Y. (ed. 1899), pp. 203-219, 708-212, and cases cited. Under Laws of 1875, chap. 108, street railroads might consolidate, Matter of Washington St. A. & P. R. Co., 115 N. Y. 442, 26 N. Y. Supp. 504. The Railroad Corporation Law as to consolidation is also given in Hamil ton's Railroad Laws of N. Y. (ed. 1899), §§ 70-84 of "The Railroad Law." See Cumming & Gilbert's Annot. Genl. Stat. and Laws N. Y., vols. 1-3 (ed. 1901) and vol. 4 (1906). Consolidation constitutes a merger, State, Nolan v. Montana R. Co., 21 Mont. 221, 53 Pac. 623, 11 Am. & Eng. R. Cas. (N. S.) 353. See 1 Thompson on Corp. (ed. 1895), § 305 et seq. 83 Edison Elec. Light Co. v. New Haven Elec. Co., 35 Fed. 233; Laws of N. Y., 1884, chap. 367, § 5, provided for consolidation of existing corporations and the transfer of their property to the new company; section 6 provided that no claim against any corporation so consolidated should be impaired; Rev. Stat. N. Y., pt. 1, chap. 18, tit. 3. § 9, provided that the directors and managers of any dissolved corporation at the time of its dissolution § 208. Consolidation to prevent competition- Misuse of charter privileges - Equity. The public welfare lies at the basis of a grant of corporate privileges. The interests of the stockholders are but secondary. Therefore, if a corporation willfully frustrates the intention so underlying its grant of power, by an act which is a fraud on the public, it is not entitled to the equitable consideration of the courts. This rule was applied in a case where the aid of equity was sought by an electric light and heat company, to restrain competition in furnishing electric light. The injunction sought was refused it appearing that the charter privileges of the petitioner had been misused, so as to hinder the public interests by a combination with another corporation, so as to suppress the use of the commodity for the supplying of which the franchise was granted.84 Abandonment-Nonuser 85 $209. of franchise-Duty to operate Forfeiture.- Deliberate selection of another route by a street railway company and the disuse of the one granted for over twenty years, constitutes, to the extent of the actual nonuse, an abandonment of the right to use certain city streets." An implied condition attaches to the grant of franchise to a street railway corporation, that it shall be held for the public benefit. Therefore, where such a corporation has accepted a city franchise and constructed its road under the same, it cannot, to the detriment of the city and its inhabitants, arbitrarily discontinue the operation of any part of its road. And, though it has been excluded, whether rightfully or wrongfully, from a county bridge, it cannot avoid its duty to operate a portion of its road, where it is practicable to operate both portions of said road without crossing the bridge.se Although there has been a nonuser of a street railway franchise for more than should be trustees of its creditors and stockholders, with full power to seettle its affairs; Rev. Stat. U. S., § 4898, provides that every patent shall be assignable in law by an instrument in writing. 84 Scranton Elec. L. & H. Co. v. Scranton Illum. H. & P. Co., 122 Penn. St. 154, 9 Am. St. Rep. 79, 3 85 Louisville Trust Co. v. Cincinnati (U. S. C. C. A., 6th Cir.), 47 U. S. App. 36, 23 U. S. C. C. A. 334, 76 Fed. 296. 86 State, Bridgeton v. Bridgeton S. & M. Trac. Co. (N. J. Sup., 1899), 43 Atl. 715. four years, yet such fact does not constitute such an abandonment as to raise a presumption of a surrender of the franchise, where such period of time has been one of great industrial depression and financial difficulties on the part of the company, and the street has been repaved and the old rails and ties which were comparatively worthless have been taken up with the company's consent, although the poles and wires, except a trolley wire, have been left in place. And in such case, where no proceedings have been taken to enforce a forfeiture, a suit at the instance of property-owners will not be sustained to enjoin the relaying of the tracks, when it is intended in good faith to resume operation of the road.87 A corporation cannot abandon its road under a pretense of sale of material, and refusal to accept the construction of a part of said road from contractors, 88 If there has been an abandonment by a street railway company of its road, an abutting owner, whose land is bounded by the street line, has no interest in the matter other than that of the general public, whose interests are only affected and in whose behalf, if a remedy is sought, an action must be brought by the Attorney-General in the name of the people.s But a city is not estopped to claim the expiration of a street railway franchise by the fact that the company has substituted electricity as a motive power and has necessarily been to a great expense in making such change.9 89 90 Abandonment - Nonuser of franchise Duty to § 210. operate - Forfeiture continued - Dissolution.- Where a city 87 Wright v. Milwaukee Elec. R. & L. Co., 95 Wis. 29, 69 N. W. 791, 36 L. R. A. 47. ss Clemens Elec. Mfg. Co. v. Walton, 173 Mass. 286, 53 N. E. 820, 52 N. E. 132. 89 Trelford v. Coney Island & B. R. Co., 5 N. Y. App. Div. 464, 39 N. Y. Supp. 20. That only State can raise question by suit, see Philadelphia & M. R. Co.'s Appeal, 187 Penn. St. 123, 40 Atl. 967, 42 Week. N. of Cas. 419; Taylor v. Portsmouth, K. & Y. St. R. Co., 91 Me. 139, 39 Atl. 560; Coquard v. National Linseed Oil Co., 171 Ill. 480, 49 N. E. 563, affg. 67 Ill. App. 20; 2 Cook on Corp. (4th ed.), § 632. But see People v. Colorado, etc., R. Co. 42 Fed. 638, action by Attorney-General in name of State authorized by statute. Wright v. Milwaukee Elec. R. &. L. Co., 95 Wis. 29, 69 N. W. 791, 36 L. R. A. 47. See 5 Thompson on Corp. (ed. 1895), § 6598 et seq. 90 Louisville Trust Co. v. Cincinnati (U. S. C. C. A., 6th Cir.), 47 U. S. App. 36, 22 U. S. C. C. A. 334, 76 Fed. 296. ordinance provides for forfeiture of a franchise to maintain poles and electric wires in its streets, the failure to expend the sum specified and to make the improvements required operate to work a forfeiture. But where the ordinance granting such franchise is recognized by the city as being in force long after a breach of the conditions of the grant, the right of said city to declare a forfeiture is waived as where the municipality maintains its own wires upon the poles, and assesses and claims taxes on the franchise and fails to avail itself of the forfeiture in defense of actions, brought to enforce franchise rights.91 So a failure to complete a street railroad within the time limit. specified in a legislative grant under penalty of forfeiture operates to work a forfeiture of the right granted without a suit by the State and judgment, and the franchise may be conferred on any other company or person.92 This case is, however, disapproved in a case in West Virginia,93 and in a later California case a divided court held that a suit by the State was necessary. But the expiration of the period limited does not necessarily impose a forfeiture, as where an injunction has been granted preventing completion of the road within the specified time.95 Again, it is held that a municipality cannot resume possession of its streets by force against the resistance of a licensee, a street railway corporation, even though it is stipulated in the grant or license, that upon a breach of conditions the city may resume such possession, and its attempt 94 91 Commercial Elec. L. & P. Co. v. Tacoma, 17 Wash. 661, 50 Pac. 592. Waiver of forfeiture exists where State amends charter when it could have claimed a forfeiture because of nonuser. Attorney-General v. Superior & St. C. R. Co., 93 Wis. 604, 67 N. W. 1138. Seee also Morawetz on Priv. Corp. (ed. 1882), § 655; Matter of Brooklyn, Winfield & N. R. Co., 75 N. Y. 335. 92 Oakland R. Co. v. Oakland, Brooklyn & F. V. R. Co., 45 Cal. 365, 13 Am. Rep. 181. See § 187 herein. 93 Hornbrook v. Elm Grove, 40 W. Va. 548, 28 L. R. A. 416, 21 94 Santa Rosa City R Co. v. Central St. R. Co., 112 Cal. 436, 38 Pac. 986, 44 Pac. 733, court was equally divided, one judge being disqualified, and so decision below was affirmed; the case had been twice argued, the division was permanent, and there was no likeli hood of an immediate change in the personnel of the court. See also People v. Los Angeles Elec. Ry. Co., 91 Cal. 338, 27 Pac. J. 673. 95 Newport News & O. P. Ry. & Elect. Co. v. Hampton Roads Ry. & Elec. Co., 102 Va. 795, 47 S. E. 839. so to do and to declare by resolution a forfeiture of privileges conferred constitutes a taking of property without due process of law, whether there has been a breach of conditions or not.96 § 211. Same subject continued. In determining whether failure to perform is ipso facto a dissolution, this distinction has been made, that by the terms of the charter the estate or franchise may absolutely determine on failure to perform the specified conditions, but that judicial proceedings are required where the provisions of the charter are that the corporation shall be dissolved on non-performance of a condition. It is also declared by the same authority, that in order to work a forfeiture there must be some willful abuse or improper neglect, not mere accidental negligence, excess of power or mistaken mode of exercise of power. There must be some act which is per se a misuser.97 It is asserted, however, by another authority that "the charter of a corporation does not expire by reason of acts of omission or commission on the part of the company constituting a sufficient ground for declaring a forfeiture; but the franchises continue in full force until the forfeiture is claimed by the State granting them, and this can be done only in a proper legal proceeding, by which the cause of forfeiture is ascertained and a dissolution adjudged." 96 Iron Mountain R. Co. v. Memphis (U. S. C. C. A., 6th Cir.), 96 Fed. 113. 97 Taken substantially from Angell & Ames on Corp. (9th ed.), pp. 803-806, §§ 776, 777. See 5 Thompson on Corp. (ed. 1895), § 6659. 98 Morawetz on Priv. Corp. (ed. 1882), § 654. Examine Booth on Street Rys. (ed. 1892), §§ 46, 47; Cook on Corp. (4th ed.), §§ 633, 634, 638; Elliott on Railroads (ed 1897), §§ 47, 48 et seq., 606; Wells on Railroad Corp. in N. Y. (ed. 1899), pp. 115, 116, 686. Examine Darnell v. State, 48 Ark. 321, 3 S. W. 365; People, Atty.-General v. Stanford, 77 Cal. 360, 2 L. R. A. 92, 18 Pac. 85, 19 Pac. 693. Courts are reluctant to grant forfeitures " 98 of franchises. Topeka v. Topeka Water Co., 58 Kan. 349, 49 Pac. 79. Suspension of business for over one year only dissolves a corporation in Kansas for the purpose of enabling creditors to enforce the statutory liability of stockholders. Sleeper v. Norris, 59 Kan. 555, 53 Pac. 757, 9 Am. & Eng. Corp. Cas. (N. S.) 45; Kansas Gen. Stat. 1897, c. 66, § 45. In Louisiana the expiration of a charter does not destroy a corporation's property and property rights. Fleitas v. New Orleans, 51 La. Ann. 1, 24 So. 623. See Re Bolton, 47 La. Ann. 1614, 18 So. 642, 30 L. R. A. 648, 2 Am. & Eng. Corp. Cas. (N. S.) 219. In Maryland equity will not dissolve a corporation, except upon express |