People v. New York, Chicago & St. Loius Railroad

Learned, P. J. On June 22,1887, a railroad corporation was formed under tlie general railroad act of this state called the “New York, Chicago & St. Louis Railroad Company,” with a capital of $4,500,000; which, to distinguish it from other corporations of the same name, will be called “No. 3.” It paid its organization tax. On August 15, 1887, said New York, Chicago & St. Louis Railroad Company No. 3 entered into a consolidation agreement under the statutes of New York, with the Erie & State Line Railroad Company, a corporation under the laws of Pennsylvania, by which the two corporations were consolidated into one corporation, known as the “New York, Chicago & St. Louis Railroad Company;” which, to distinguish it, will be called “No. 2.” The capital stock of No. 2 was $7,500,000, being a sum equal to the aggregate of the capital stock of the two consolidating companies. The agreement of consolidation was duly filed that day in the office of the secretary of state of New York. No organization tax was paid to the state. On September 27,1887, the New York, Chicago &St. Louis Railroad Company No. 2, and the Cleveland & State Line Railroad Company, a corporation under the laws of Ohio, and the Et. Wayne & Illinois Railroad Company, a corporation under the laws of the state of Indiana, under and in pursuance of the statutes of New York entered into a consolidation agreement, by which they were consolidated into a new corporation, by the name of the “New York, St. Louis & Chicago Railroad Company;” which, to distinguish it, will be called “No. 1.” The capital stock of No. 1 was $30,000,000, a sum equal to the aggregate of the capital stock of the three consolidating companies. No organization tax was paid to the state of New York. The agreement of consolidation was duly filed with the secretary of state of New York. The defendant in this case, which is the corporation above mentioned, formed by the consolidation last named, and distinguished as “No. 1,” is exercising in this state corporate powers, and exercising, or assuming to exercise, the corporate franchise of maintaining and operating a railroad from the city of Buffalo, in New York, to a point on the boundary line between Indiana and Illinois. The plaintiff claims that there was due and payable to the treasurer of the — 636 — state of Hew York, from the Hew York, Chicago & St. Louis Railroad Company Ho. 2, $9,375, being one-eightli of 1' per cent, on its capital, which is still due, with interest from August 15, 1887; which sum this defendant is liable to pay by virtue of the agreement of consolidation. The plaintiff claims that there was due and payable to the treasurer of the state from the defendant the sum of $37,500, being one-eighth of 1 per cent, on the capital stock, which is still due, with interest from September 27, 1887. The question arises under the corporation tax law, (chapter 143, Laws 1886,) and it is presented to this court by a case submitted. Section 1 of that law is as follows: “Every corporation, joint-stock company or association, incorporated by or under any general or special law of this state, haying capital stock divided into shares, shall pay to the state treasurer, for the use of the state, a tax of 1-8 of one per centumupon the amount of the capital stock which said corporation, joint-stock company or association is authorized to have. ” “ And the secretary of state, and any county clerk, shall not file any certificate of incorporation * * * until he is satisfied that such tax has been paid to the state treasurer.” There is no question that the defendant has capital stock divided into shares. The inquiry must be whether the defendant, when it filed its consolidation papers, September 27, 1887, became a corporation incorporated under a general law of this state. To determine this, we must first look at the railroad consolidation act, (chapter 917, Laws 1869,) as amended by chapter 685, Laws 1881. Section 1 authorizes any railroad company “organized under the laws of this state, or of this state and any other state,” “to merge and consolidate its capital stock, franchise, and property with the capital stock, franchise, and property of any other railroad company or companies organized under the laws of this state, or under the laws of this state and any other state, or under the laws of any other state or states.” Section 2 provides the mode and speaks of the name of the new corporation, “and of the conversion of the stock” into that of the new corporation. “It declares that a copy of the agreement of consolidation duly certified shall be evidence of the existence of the new corporation.” Section 3 declares that, on the making, perfecting, and filing the agreement, the corporations parties thereto “shall be deemed and taken to be one corporation. Section 4 provides that all rights and property shall be vested in the new corporation without further act or deed. Section 5 preserves all debts, and makes the new corporation liable therefor. Polhemus v. Railroad Co., 123 N. Y. 502, 26 N. E. Rep. 31, and 3 N. Y. Supp. 327, reversing Janes v. Railroad Co., Id. 165. The section declares “that the respective corporations shall be deemed to continue in existence to preserve” the rights of all creditors. This clause should be noticed, inasmuch as it tends to explain and harmonize with the general scope of the acts certain decisions of the United States supreme court hereafter to be mentioned; and it shows that, by the intent of the legislature, the formation of one new corporation out of two already existing is not inconsistent with a continuance, to a certain extent, of the constituent corporations. That suits may be brought against the new corporation is provided in this section; and the very submission in this ease shows that the new corporation is an artificial person; for it declares itself to be “a domestic railroad corporation.” Section 6 provides for the taxation of the real property of such new corporation wherever situated, and for the taxation of its stock and personal property. It is therefore most positively declared by the legislature that such consolidation does create a new corporation. In accordance with this, the agreement of consolidation between the constituents repeatedly declares that they form one corporation, and states when such consolidated corporation shall go into operation. It is clear then that, prior to the time of executing and filing this agreement, there was no such corporation as the present defendant. There was another corporation which had the same name, and — 637 — which we have designated as No. 2. But the defendant, No. 1, did not exist before that time, and does exist now. Hence it necessarily follows that the defendant is a new corporation, with new duties and new powers; and, as it obtained its existence by the authority of this New York consolidating statute, it was evidently incorporated under a general law of this state; and therefore it must come under the provisions of the statute imposing an organization tax.” This is the plainer seen by the clause of that statute which forbids the filing of the papers by the secretary of state until the tax is paid. The defendant desired the filing of its papers, and as a condition of such tiling it is required to pay a certain tax. Plainly the state is at liberty to impose such terms as it pleases upon the filing of papers in the office of its secretary. This doctrine is distinctly laid down in People v. Cook, 110 N. Y. 443, 18 N. E. Rep. 113, affirming 47 Hun, 467. That the effect of such a consolidation is to form a new corporation is shown in McMahan v. Morrison, 16 Ind. 172; Railroad Co. v. Maine, 96 U. S. 499; Shields v. Ohio, 95 U. S. 319, and Clearwater v. Meredith, 1 Wall. 25. The same view is taken in People ex rel. Phonograph Co. v. Rice, 11 N. Y. Supp. 249, affirmed court of appeals, (1891,) 28 N. E. Rep.-, where it" was. distinctly held that, by the consolidation, a new corporation was formed, and, further, that such new corporation was bound to pay the coiporation tax now in question. The question is therefore settled, unless a distinction can be made from the fact that two of the constituent corporations were foreign corporations. It might be said, in the outset, that if the foreign corporation chooses to come into this state, and take advantage of a statute of this state permitting it to do a certain act, it must do this on theconditions imposed. One of those conditions is that, if two corporations do avail themselves of this consolidating statute, they must pay the organization tax. This was decided in ths Phono, graph Case, ut supra. It might be said that the foreign corporation has made an agreement under our statute purporting to form with the domestic corporations a new corporation; and that, whether that old foreign corporation still has some existence in anotherstate, at any rate the new corporation must pay the organization tax. And we might further remark that the consolidation act itself preserves a certain existence of the constituent corporations, so far as their creditors are concerned. Yet such existence of the constituent corporations in no way affects the liability of the new corporation to pay the organization tax, as was seen in the Phonograph Case. In that case, notwithstanding the statute preserved to a certain extent the existence of the two domestic constituent corporations, yet the new corporation was held liable to pay the tax. Therefore whatever might be held in regard to the existence in another state of one of the constituent corporations in this case, still the new corporation must pay for the privilege which it has undoubtedly obtained of being a corporation here. If this state chooses to enact that, on payment of an organization tax, a foreign corporation and a domestic corporation may unite into a domestic corporation here, it cannot matter what may be the rights of that foreign corporation in the state where it was formed. If it accepts the privilege allowed it here, it must pay the tax, on payment of which alone the privilege is granted. But it is urged by the defendant that certain decisions of the United States supreme coartare fatal to plaintiff’s claim. The case of Nashua & L. R. Corp. v. Boston & L. R. Corp., 136 U. S. 356, 10 Sup. Ct. Rep. 1004, is cited. In that case the Nashua & Lowell Railroad Corporation was incorporated in New Hampshire in 1838 by a special act. The Nashua & Lowell Railroad Corporation was incorporated by Massachusetts in 1836 by a special act. In 1838 the state of Massachusetts passed a special act declaring that the stockholders of the New Hampshire corporation were thereby constituted stockholders of the Massachusetts corporation, and that the two corporations were thereby united into one. In the same year the state of New Hampshire passed a spe — 638 — cial act declaring that the two corporations, viz., the Massachusetts and the New Hampshire, were authorized to unite the said corporations, and that the property owned by either should be taken to be the joint property of the stockholders of,the two corporations. Subsequently, in 1857, this corporation entered into a contract with the Boston & Lowell Railroad Company that their roads should be worked and managed as one road, to be operated and managed ■by one agent, to be chosen by the votes of the directors of each road. The plaintiff was the New Hampshire corporation, or, as called in the opinion, the “Nashua Corporation.” It alleged that it was duly established as a corporation under the laws of New Hampshire. It brought this action in equity in the circuit court of the United States for thedistrietof Massachusetts. A plea in abatement was filed alleging that plaintiff was a citizen of Massachusetts. The plea was overruled. The same matter was set up in the answers. Replications were filed denying, in effect, the allegations respecting the acceptance of the acts having for their object the union of the two corporations; and the allegations of such acceptance were entirely unsupported by the evidence or by anything on the record. A majority of the court held that the ■circuit court had jurisdiction; and the court remarked that, however closely ■two corporations of different states may unite their interest, their separate identity is not lost. Now, we have carefully stated the facts of that case, that no incorrect conclusions may be drawn from any remarks in the decision. Several things will be seen: First, that the two corporations (bearing the same name) were not shown to have accepted the acts of Massachusetts and •of New Hampshire; second, that the act of New Hampshire does not purport to consolidate the two into one, but speaks of them still as two corporations; third, that the act of Massachusetts is to have no effect until the stockholders •accept both of the acts. The statutes, therefore, in that case are entirely different from the consolidating statute in this state, and no evidence was given that the stockholders had accepted these acts of the two legislatures. The present case is not one where two corporations merely unite their interests, and have the same directors. Here there is the creation of a new corporation, as was decided in the cases above cited. And this distinction is very dearly pointed out in Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 118 U. S. 290, 6 Sup. Ct. Rep. 1094, where the head-note is: “When an ■existing railroad corporation organized under the laws of one state is authorized by the laws of another state to extend its roads into the latter, it does not become a citizen of the latter state by exercising this authority, unless the ¡statute giving this permission must necessarily be construed as creating a new corporation of the state which grants the permission.” And in the language of the court, “to make such a company a corporation of another state, the language used must imply creation or adoption in such form as to confer the power usually exercised over corporations by the state or legislature. ” “It does not thereby become such new corporation of another state until it does some act which signifies its acceptance of this legislation, and its purpose to be governed by it.” If the case of Nashua & L. R. Corp., ut supra, "was intended to overrule these views, it is probable that something of that nature would have been said in the opinion. Language could hardly be used more applicable to the present controversy. In the present case, the words of ■theconsolidating act distinctly express the creation of anew corporation; and the two constituent corporations have expressly accepted the legislation, and -claimed its benefits. It is true that in Railway v. Whitton, 13 Wall. 270, where the Chicago & Northwestern Railroad Company was incorporated in the state of Wisconsin, and also in the state of Illinois, and the plaintiff, a •citizen of Illinois, brought an action in the state court of Wisconsin against that company for an injury done in that state, and subsequently removed the action to the United Slates circuit court for Wisconsin, it was held that the -removal was proper. The court said that in Wisconsin the defendant corpo — 639 — rated there was not a corporation or a citizen of any other state. Nor need we hold (because that question is not before us) that in the state of Illinois the Fort Wayne & Illinois-Railroad. Company may not still be sued in the federal courts by a person not a citizen of that state. A natural person, citizen of Illinois, may join with others, and may form a corporation under the laws of New York. But he will still be a citizen of Illinois. So, even if it were held by the federal courts, for the purpose of their jurisdiction, that that railroad was a citizen of that state, it would not follow that a corporation had not been formed in tbe state of New York. That is a question with which we have nothing to do. All that we have to decide is whether in this state a new corporation was formed, and, if so, what are the terms on which it was •allowed the privilege of such new incorporation. And it will be observed that the cases principally relied upon by the defendant arose on the question •of jurisdiction of the federal courts; that is, on the question as to the state of which the corporation sued or suing was a so-called “citizen.” In Railroad Co. v. Wheeler, 1 Black, 286, is shown the gro.wth of the doctrine, at first questioned, that a corporation is, so far as the jurisdiction of the federal courts is •concerned, a citizen of the state where it is incorporated; and that doctrine is placed on the ground that the legal presumption is that its members are citizens of that state. Of course, it is well known that such presumption is not true in fact, just as it is well known that a corporation is itself an imaginary existence,—a legal fiction,—which can have no real citizenship. The right to be a corporation is really only the right of several natural persons to act as one, so that the acts, done through agents, shall not be the acts of these several persons, but of the imaginary body composed of them. This right is conferred by the state. And there seems to be no reason in principle why two slates should not confer the same right upon the same body of natural persons, and why, in such case, the same corporation should not exist under the laws of two states. And it might present an interesting question for the federal courts if the same persons were incorporated at the same time into an •apparently identical corporation in each of two states, in which of those states it would be a citizen. We have not overlooked the language of the court in the case last cited, where, for instance, it is said: “The legal entity or person which exists by force of law can have no existence beyond the limits of the state or sovereignty which brings it into life. ” Yet certainly corporations do act and perform very important acts in states in which they were not incorporated. But, however that may be, the question which arose in that ease was on the jurisdiction of the federal courts; and the court said that the suit in the corporate name was, in contemplation of law, the suit of the individuals who compose it. That is not so in any respect, except it be on the question of federal jurisdiction. This present submission, for instance, is not the submission of the individuals who compose the defendant. But this matter is not important here. The question here is whether this defendant is a corporation incorporated under a law of this state. That the doctrine of cases above cited, that consolidation forms a new corporation, is not confined to the consolidation of two corporations incorporated by the same state, is evident from the Case of Delaware R. R. Tax, 18 Wall. 206. There the Delaware & Maryland Railroad Companj', incorporated under the laws of Maryland, and the Wilmington & Susquehanna Railroad Company, incorporated under the laws of Delaware, were by subsequent acts of those •states consolidated, and a tax was imposed on the new corporation. Again, in Railroad v. Maryland, 10 How. 376, there was a consolidation of corporations of different states; and the court, at page 392, speaks of these companies as being thereby incorporated into one, which one was the plaintiff in error. Of course, as it was a plaintiff, it must have had the right to sue and be sued; which shows that the consolidated company was itself a corpora•tion. — 640 — It is contended by the defendant that it is absurd that the capital stock of this defendant should be $30,000,000. But we nave only to turn to the agreement of the consolidating companies, the fourth article of which says that the capital stock of said consolidated company shall be that amount, and the sixtli article of whicli provides for the issue thereof. And it will be seen by that sixth article that, on carrying the agreement into effect, there will be no longer any capital stock of any company, other than that of the present defendant, Ihe New York, St. Louis & Chicago Railroad No. 1; which, by the seventh article, owns all the property of the constituent companies. The defendant’s counsel ask by what necromancy has its capital stock been increased from four and one-half million to thirty million. But there has been no increase of the capital of any company. The present defendant is not the same corporation with the New York, St. Louis & Chicago Railroad-No. 2, though it lias the same name. Some argument is made by defendant based on the assertion that these constituent corporations have also incorporated themselves into one corporation under the laws of other states, viz., Ohio, Pennsylvania, and Indiana. The agreement for the consolidation in this state expresses an intention so to do. Bi.t we fail to findcanything in the submission which shows that this has been done. We do not, therefore, know what is the fact; and it is not for us to determine what rights and liabilities may arise in other states, if consolidation has there taken place. The defendant must take the position that it is not a corporation; because, by the fifth, sixth, and seventh clauses of the . submission, the defendant is identified and is distinguished from the previous corporations of that same name. Therefore the defendant is not the corporation called “No. 3,” and is not that called “No. 2." What is the defendant then? Who lias made this submission? It purports to be executed by a corporation under its seal, and by the hand of its president. If defendant is not a corporation, then there is no party to the submission on one side, and the submission should be dismissed. In the view we have taken, this defendant is liable to pay the organization tax arising on the -agreement of September 27, 1887. Under the Polhemua Case, above cited, it is liable for the tax which the constituent company No. 2 should have paid on the agreement of August 15, 1887, and it is liable for interest on these amounts. Judgment for plaintiff should be entered accordingly, as prayed for in the submission.