The opinion
Concurring Opinion in Part.
Fennér, J.
The Act No. 157 of 1874 undoubtedly authorized the-consolidation of the Crescent City and the New Orleans Gas Light Companies; and the effect of that consolidation, as we held in Fee’s case (35 Ann. 413), was, “to terminate the existence of the original corporations, to create a new corporation, to transmute the members of the former into members of the latter, and to operate a transfer of the property, rights and liabilities of each old company to the new one.”
The rights and obligations of each old company passed to the new company just as they stood; the consolidation created no new rights and no new obligations, nor did it enlarge or diminish, restiict or extend, existing rights or obligations.
If the Legislature had granted to one of the old companies any pe7 culiar franchise which had not been granted to the other, obviously the duration of such franchise would he limited by the term for which it had been granted, i. e., by the duration of the charter of the company possessing it. The right held by this company would he the right to exercise the franchise during the term for which it was granted by the Legislature, that is, during the term of its charter, and it could not, by consolidation, confer upon the new company a greater 3’ighfc or one extending over a longer term ; it being home iu mind that the act authorizing this consolidation has no reference to these particular corporations, hut is a general law applicable to all business and manufacturing corporations. Otherwise, any corporation possessing a valuable franchise, limited as to its term by the length of its charter, might prolong it indefinitely by waiting until it was about to expire *392 and then consolidating with some other company having longer life, whose “objects and business were of the same general nature” but which did not possess this particular franchise or right.
The statement of such a proposition is sufficient to refute it.
The same rule must necessarily apply to obligations resting exclusively on legislative imposition, such as the one here involved. The obligation to furnish free light to the Charity Hospital has no basis except in the legislative will and power accepted by the New Orleans Gas-light Company under and according to the terms imposed, which expressly limited the obligation as to time by the words, “during the continuance of che charter of said Gas-light Company.”
Therefore, at the moment of the consolidation, the old New Orleans Gas-light Company was subject to no obligation to furnish free gas to the hospital, except for a term limited by the term of its charter. This obligation and no other was transmitted to the consolidated corporation under the letter and spirit of the law.
While the consolidation terminated the existence of both old corporations, yet this destroyed neither the rights nor obligations of either, which were held by the new company precisely as they were held by each of the old ones.
Hence, the new company received the obligation precisely as the old company held it and would have continued to hold it but for the consolidation, to wit: during the term for which its charter had been granted, and I dissent from the contrary views expressed in the majority opinion.
I concur, however, in the view that this term extended to April 1, 1895, under the effect of Act 66 of 1860. The judgment of this Court declaring that act unconstitutional never became res judicata, by reason of the writ of error from the Supreme Court of the United States, and by reason of the compromise or transaction between the parties resulting in the consolidation which settled the whole controversy between the parties to that suit and withdrew it from further litigation by the dismissal of the writ of error, which dismissal was expressly bottomed on said settlement.
It does not lie in the mouth of the defendant corporation representing, as it does, the old New Orleans Gas-light Company, which accepted and acted under said act and enjoyed the extended privileges granted thereby, to raise anew the question of its constitutionality.
On these grounds I concur in that part of the decree only which dissolves the injunction.