490 HARVARD LAW REVIEW. of it to another company. Legislative aid is necessary to that end. But this company had, by its charter, express power to incorporate its stock with the stock of any other company. This power has an enlarging effect upon the ordinary power to sell and dispose of property belonging to the company. Generally the power to sell and dispose has reference only to transactions in the ordinary course of business incident to a railroad com- pany ; and does not extend to the sale of the railroad itself, or of the franchises, connected therewith. Outlying lands, not needed for railroad uses, may be sold. Machinery and other personal property may be sold. But the road and franchises are generally inalienable ; and they are so not only because they are acquired by legislative grant, or in the exercise of special authority given, for the specific purposes of the incorporating act, but because they are essential to the fulfilling of those purposes ; and it would be a dereliction of the duty owed by the corporation to the State and to the public to part with them. But where, as in this case, power is given to incorporate the capital stock with the stock of any other company, a very large addition is made to the ordinary powers granted to a com- pany. In this country, the creation and exercise of such a power is well understood. It contemplates not only the possible transfer of the railroad and its franchises to another company, but even the extinguishment of the corporation itself and its absorption into a different organization. The greater power of alienating or extinguishing all its franchises, including its own being and existence, contains the lesser power of alienating its road and the franchises incident thereto and necessary to its operation. Its power of alienation and sale extends to a class of subjects to which it does not ordinarily apply. In view of the large power thus conferred upon the South Georgia and Florida Railroad Company, we cannot doubt that it had full power to enter into the arrangement made with the Atlantic and Gulf Railroad Company for the transfer of that portion of its line ex- tending from Albany to Thomasville, including the franchise of construct- ing and using the same and an incorporation of all its stock, issued for the construction of said road with the stock of the latter company." If these were all the authorities on the subject, it would seem that the method of consolidation under consideration was author- ized by law. There is, however, an embarrassing decision to be found in the case of Commissioners of Tippecanoe County v. Railway Co.^ In this case the question arose as to the validity of an agreement made by an Indiana company with an Illinois com- pany whereby the Indiana company leased its road for 999 years, giving to the lessee the option to purchase the property. It was treated, however, by the court as a sale, " different from a sale and 1 so Ind. 8
