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states into and through which its railroad, or any part thereof, or its branches or leased lines, may run, all the rights, privileges, and franchises of each of the said corporations so consolidated.

"Sec. 2. Upon the consummation of said act of consolidation, as provided by law, all and singular the rights, privileges, and franchises of each of said corporations parties hereto, and all other property, real, personal, and mixed, and all debts due on whatever account, as well stock subscriptions as all other things in action belonging to each and every of said corporations, parties hereto, shall be taken and deemed to be transferred to and vested in the St. Louis, Iron Mountain & Southern Railway Company,' as such new corporation, without further act or deed; and all property, all rights of way, and all and every other interest shall be as effectually the property of this new corporation, without further conveyance or assurance, as they were of the former corporations parties hereto; and all rights of creditors, and all liens upon the property erected by either of the said corporations, shall be preserved unimpaired, notwithstanding said merger and consolidation; and all debts, liabilities, obligations, and duties of either of said corporations parties hereto, shall thenceforth attach to the said new corporation, and be enforced against it to the same extent and in the same manner as if said debts, liabilities, obligations, and duties had been incurred or contracted by it. And the board of directors of said company shall have full power and authority to borrow such sums of money, and in such form, as they may deem proper, to pay off the present debts and liabilities so assumed by the corporation hereby created, and to meet other exigencies of the company, and to secure the payment thereof by a mortgage or mortgages on the property and franchises of said company, or any part thereof. The by-laws which may be adopted by concurrent resolution of stockholders' meetings of said companies, parties hereto, shall be the by-laws of said consolidated company, subject to repeal or amendment as therein or by law provided."

The consolidated company, organized under this agreement, claims that it is entitled, under the provisions of the charter of the Cairo & Fulton Railroad Company, to the exemption from taxation contained in the eleventh section of that act. It accordingly filed its bill in equity in the chancery court of Pulaski county to restrain the defendants, the defendants in error, who were the railroad commissioners of the state, from proceeding to assess for taxation, under the provisions of “An act to revise and amend the revenue laws of Arkansas," approved March 31, 1883, the railroad of the company in the state of Arkansas, alleging that “its road was completed on the fifth day of December, 1873; that it does not now, and never had, paid an interest of ten per cent. per annum, nor has any dividend ever been realized or declared on its capital stock."

A decree dismissing the bill was rendered on final hearing in the chancery court, on two grounds: that the complainant company was not entitled to the benefit of the exemption contained in the eleventh section of the charter of the Cairo & Fulton Railroad Company, and that, if it were otherwise, the exemption would not apply, for the reason that the court found upon the testimony that the earnings of the road in Arkansas had been, and were for the year 1882, more than 10 per cent. on the cost of its construction and equipment. On appeal to the supreme court of Arkansas, this decree was affirmed on the single ground that the complainant company was not entitled to the benefit of the exemption from taxation claimed by it. In reference to the other question the court said: "What we have already said renders it unnecessary to go into this question. In the very nature of things it is impossible to do more than guess at it. It appears by the plaintiff's own proofs that the officers cannot tell, save by an approximation, what the actual earnings of this part of the road are." To reverse this decree the present writ of error is prosecuted.

The main point urged in argument in support of the claim of the plaintiff in error to the exemption from taxation, is that the consolidation of the Cairo & Fulton Railroad Company with the St. Louis & Iron Mountain Railroad Company was the exercise of a right, on the part of the former, plainly and expressly conferred by the tenth section of its charter, and not in anywise inconsistent with the continued force of the exemption contained in the eleventh section, which referred as well to the company when it had become a constituent of a consolidated company under the previous section, as to the same company in its original form and organization; so that the terms of the exemption, which, it is not denied, is a valid contract protected against subsequent legislation by the constitution of the United States, apply to the plaintiff in error as a party directly embraced within its words and meaning. To this view several objections are suggested.

It is said, in the first place, that the authority "to make joint stock with any other railroad company in this or any other state, and to form one board of directors for the management of their affairs," notwithstanding the punctuation which separates the sentence from the following words,-"If it should be found necessary to facilitate the early construction of their said road,"yet, nevertheless, is necessarily connected with them in sense, and must be limited by them; that a consolidation, not effected until after the complete construction of the road, is not embraced within the authority conferred; and that, consequently, the consolidation, as made in 1874, must be referred to the forty-third section of the general act of 1868, and subject, therefore, to the restrictions of the state constitution then in force forbidding the exemption of corporate property from taxation. But to this it is replied that the forty-third section of the act of 1868 does not authorize a consolidation of domestic with foreign corporations, and applies to the former alone; and that, consequently, the consolidation now the subject of discussion, if it cannot be referred to the tenth section of the charter of the Cairo & Fulton Railroad Company, must fail altogether.

It is next objected, however, that, admitting the consolidation to have been effected, as claimed by the plaintiff in error, under the provisions of that charter, the language of the exemption in the eleventh section cannot be applied to the consolidated company. The words of that section exempt forever from taxation the capital stock and dividends "of said company," which would seem to imply the continued separate existence of the company as originally organized, and not properly to refer to a capital stock representing a consolidated company, owning and operating a railroad in several states. But "the road, fixtures, and appurtenances" are declared to be exempt from taxation only "until after it [that is, the company] pays an interest of not less than ten per cent. per annum." And it is argued that this exemption necessarily implies that the property and operations of the company shall be preserved separate from those of any other, so that, at all times, it may be ascertained, by an inspection of accounts, whether the earnings equal an interest of 10 per cent. per annum; a separation, it is insisted, which is inconsistent with a consolidation such as took place. And the case, it is said, is thus brought within the principle of the decision in Railroad Co. v. Maine, 96 U. S. 499.

We do not find it necessary to pass upon either of these questions, however, as there is a distinct ground, which is conclusive of the controversy, upon which we prefer to rest our decision. We assume that the consolidation as made was authorized by, and must be referred to, the tenth section of the charter of the Cairo & Fulton Railroad Company; but we do not admit, what is assumed as an inference from that, that the consolidation took effect, by relation, as of the date of that charter. The consolidated company, the St. Louis, Iron Mountain & Southern Railroad Company, the plaintiff in error, is not the identical corporation which was the Cairo & Fulton Railroad Company. The terms of the act and agreement of consolidation, which, by

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"9

the express language of the charter of the Cairo & Fulton Railroad Company, became, on adoption, the charter of the consolidated company, created a new corporation. It is spoken of as "the new company" in the resolutions of the board of directors, submitting the agreement to the stockholders for their approval, and directing the president to cause the same to be carried into effect, when approved, by calling in "the certificates of stock in this company outstanding," and exchanging them "for stock in the new company, according to the terms of the agreement. The two corporations agree to become one corporation, and a new name is given to the "new corporation." It is spoken of as such throughout the agreement of consolidation. The whole organization is changed and made new. The capital stock is made different from that of either, or the aggregate of both; each share of stock held in the Cairo & Fulton Railroad Company being exchanged for sixty-hundredths of a share in the St. Louis, Iron Mountain & Southern Railway Company. The act of consolidation is declared to be a conveyance of all the rights, privileges, and franchises of each of the constituent corporations, and of all other property, real, personal, and mixed, and all debts due, on whatever account, belonging to each corporation, to the new corporation, without further act or deed.

This new corporation did not come into existence until May 4, 1874. It came Into existence as a corporation of the state of Arkansas in pursuance of its constitution and laws, and subject in all respects to their restrictions and limitations. Among these was that one (article 5, § 48, of the constitution of 1868) which declared that "the property of corporations, now existing or hereafter created, shall forever be subject to taxation, the same as property of individuals." This rendered it impossible in law for the consolidated corporation to receive by transfer from the Cairo & Fulton Railroad Company, or otherwise, the exemption sought to be enforced in this suit. The case is thus brought within the rule declared and applied in Louisville & N. R. Co. v. Palmes, 109 U. S. 244; S. C. 3 SUP. CT. REP. 193. It is not an answer to this conclusion to say that the act of consolidation, having been made in pursuance of the tenth section of the charter of the Cairo & Fulton Railroad Company, was the exercise by that company of a right secured to it by contract which no subsequent constitution or law of the state of Arkansas could impair or defeat. For what was the contract? Construed in the most liberal spirit in favor of the company, it cannot be extended beyond a stipulation on the part of the state that the Cairo & Fulton Railroad Company may at any time thereafter, by consolidation with any other railroad company, form and become a new corporation, with such powers and privileges as at the time when the offer is accepted and acted upon may be within the power of the state to confer, and lawful for the new corporation to accept. If acted upon before the law was changed, it might well be that all the powers and privileges originally conferred in the charter of the Cairo & Fulton Railroad Company, including the exemption in question, would have vested in the new company. But, as it was not accepted and acted upon until a change in the organic law of the state forbade the creation of corporations capable of holding property exempt from taxation, it must be presumed that when the original company entered into the consolidation, it did so in full view of the existing law, and with the intention of forming a new corporation, such as the constitution and laws of the state at that time permitted. That, at least, we must hold to be the legal effect of the transaction. In that view, the language used by this court at the present term in the case of Memphis & L. R. R. Co. v. Berry, 112 U. S. 609, S. C. ante, 299, is strictly applicable and is now reaffirmed.

The conclusion is unavoidable that the exemption from taxation declared in the eleventh section of the charter of the Cairo & Fulton Railroad Company did not pass by the act of consolidation to the St. Louis, Iron Mountain & Southern Railway Company.

The judgment of the supreme court of Arkansas is therefore affirmed.

(113 U. S. 539)

RICHARDS v. MACKALL, Jr.

(October Term, 1884.)

1. PRACTICE-APPEAL-CITATION-JUSTICE OF SUPREME COURT OF DISTRICT OF COLUM

BIA.

When there is an appeal from the supreme court of the District of Columbia, a justice of that court may sign the citation, under sections 999, 1012, and 705 of the Revised Statutes of the United States.

2. SAME ALLOWANCE OF APPEAL.

The supreme court of the District of Columbia, while sitting in special term, may allow an appeal to the United States supreme court from one of its final decrees rendered at a general term.

Appeal from the Supreme Court of the District of Columbia. On motion (1) to dismiss the appeal; or, if that is denied, (2) to vacate the supersedeas. W. Willoughby, for motion. W. B. Webb and Enoch Totten, in opposition. WAITE, J. The supreme court of the District of Columbia consists of one chief justice and five associate justices. Rev. St. D. C. § 750; 20 St. 320, c. 99, § 1. The law provides for both special and general terms of the court, and for an appeal from the special to the general term; but the judgments and decrees, when rendered, are, whether they be at general or special term, the judgments and decrees of the supreme court. Rev. St. D. C. §§ 753, 772. A general term is held by three justices, two, however, constituting a quorum, and a special term by one. Rev. St. D. C. §§ 754, 757; 20 St. 320, c. 99, § 2. By section 705 of the Revised Statutes of the United States, as amended February 25, 1879, (20 St. 320, c. 99, § 4,) the final judgments and decrees of the supreme court of the District of Columbia, in cases where the value of the matter in dispute exceeds $2,500, may be brought to this court for review "upon writ of error or appeal, in the same manner and under the same regulations as are provided by law in cases of writs of error on judgments, or appeals from decrees rendered in a circuit court." This is an appeal from a decree of the supreme court of the district at a general term held by Chief Justice CARTTER and Associate Justices HAGNER and Cox, which began on the first Monday in April, 1884, and ended July 5, 1884. The transcript contains the following:

"[Filed July 8, 1884.]

"SUPREME COURT OF THE DISTRICT OF COLUMBIA.

"Brooke Mackall, Jr., v. Alfred Richards et al. (8,118, Eq.)

"And now comes the said defendant, Alfred Richards, and appeals to the supreme court of the United States from the decree of the general term passed July 5, 1884, in the above cause against him.

"WM. B. WEBB, for defendant, Richards. "The above appeal is allowed this eighth day of July, 1884. "(By the court.) MCARTHUR, Justice."

*Then follows a citation in proper form, signed by the chief justice of the court, bearing the same date as the order allowing the appeal. This citation was served October 7, 1884. Next in the transcript is the following: "IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, THE TENTH DAY OF JULY, 1884. "Brooke Mackall, Jr., v. Alfred Richards et al. Then follows a supersedeas bond in due form, "Approved July 11, 1884.

(No. 8,118, Eq. In Error.)"

and at the foot these words: MCARTHUR, Justice."

The appeal was docketed in this court on the fifteenth of October, 1884. The grounds of the motion may be stated thus: (1) The citation was not signed by the justice who approved the bond; (2) the citation was not served

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in time; and (3) Mrs. Richards and Leonard Mackall, who were defendants below, have not joined in the appeal.

Sections 999, 1012, and 705 of the Revised Statutes, taken together, provide in effect that when there is an appeal from the supreme court of the District of Columbia to this court, the citation may be signed by any justice of that court. Such an appeal is to be taken under the same regulations as appeals from the circuit court. Section 705. On appeals from the circuit court a judge of that court may sign the citation. Section 999. Clearly, therefore, when the appeal is from the supreme court of the district, a justice of that court may do the same thing. The transcript in this case shows that the appeal was allowed by the court, undoubtedly sitting in special term. This, we think, may be done. An appeal in a proper case is a matter of right. The decree appealed from was the decree of the supreme court, and the court, while sitting in special term, was still the supreme court, and, as such, capable of allowing an appeal to this court from one of its final decrees, though rendered at general term. As the general term had closed, it was quite proper to apply to the court sitting in special term for the allowance of the appeal. The allowance by the court while in session at special term would not do away with the necessity of a citation, because the allowance would not have been made at the same term in which the decree was rendered. Yeaton v. Lenox, 7 Pet. 221; Railroad v. Blair, 100 U. S. 662. As the allowance was made by the court, it was quite regular for the chief justice to sign the citation. The transcript also shows that the bond was approved by the court. It seems to have been presented to the court on the tenth of July and approved the next day. What was done was, according to the transcript, "In the Supreme Court of the District of Columbia." Even if the citation was not served in time, which we do not decide, the failure to serve will not work a dismissal of the appeal. Dayton v. Lash, 94 U. S. 112.

The last ground of the motion to dismiss was not relied upon in argument. The effect of what has been done was to allow a separate appeal by Alfred Richards. The motions are overruled.

(113 U. S. 339)

TOWN OF SANTA ANNA v. FRANK.

(January 26, 1885.)

1. PRACTICE-FINDING OF ISSUES -SUPREMme Court.

The general finding of issues by the court below are not open to review by the United States supreme court.

2. SAME-COMMON COUNTS.

The determination by the supreme court of a question as to the authority of the town of Santa Anna to issue bonds in the aid of a railroad company, cannot affect the judgment when the common counts, under which the case was tried in the court below without a jury, are sufficient, under the laws of Illinois, to support the judgment, without reference to the question of authority to issue the bonds described in a special count.

In Error to the Circuit Court of the United States for the Southern District of Illinois.

The first count in the declaration is upon certain bonds and coupons purporting to be the obligations of the town of Santa Anna, in the state of Illinois, and to have been issued in pursuance of an act of the legislature of Illinois, entitled "An act to amend the articles of association of the Danville, Urbana, Bloomington & Pekin Railroad Company, and to extend the powers of and confer a charter upon the same," approved February 28, 1867, and in accordance with the vote of the electors of said township, at the special election held July 21, 1866. The declaration also contains the common counts for money paid, money had and received, etc. A jury having been waived by