Opinion oe the Court,
Sample, J.The appellant being the alleged owner of $25,000 of stock in the company of appellee, the same having been subscribed in the year 1870, filed its bill to enjoin the consolidation of appellee’s road with three other certain railroads, making appellee the only party defendant. The article of consolidation was signed by the respective railroad companies before the bill was filed in the Circuit Court, at which time, however, the article had not been filed with the Secretary of State as provided by law. It was filed there the next day after the filing of the bill.
ISTo writ of injunction was granted and none applied for so far as disclosed by this record.
The bill prayed that in case the appellee had conveyed its property to the consolidated company, then such deed, on the hearing, should be set aside.
On hearing, the bill was dismissed and this appeal taken. The facts relating to the lfierits of this controversy have not been stated, for the reason the point is made by appellee that a franchise is involved, and therefore this court can not take jurisdiction.
It appears that, from the 22d day of May, 1889, when the article of consolidation was filed with the Secretary of State, the appellee has been in form, and as a matter of fact, a component part of the Louisville, Evansville and St. Louis Consolidated Eailroad Company, the name taken by said roads after such consolidation, which road has been in constant operation as a corporation.
The effect of the article of consolidation was, if authorized, to create a new corporation de jure. O. & M. R. R. Co. v. People, etc., 123 Ill. 467.
If the incorporation was irregular under the proof, it became a corporation de facto. In either view, it seems to us a franchise is involved. The necessary result of sustaining the bill is to destroy the corporate, or assumed corporate existence of the Louisville, Evansville and St. Louis Consolidated Eailroad Company, and without its being made a party defendant. Hot being a party defendant, it -was not affected by the filing of the bill, before the filing of the article of consolidation; neither was the appellee affected thereby, so far as its merger into said corporation is concerned, for the reason that the conveyance to such consolidated company was made before the bill was filed, and as to it, or any action it could take, the consolidation had been consummated. For the reason stated, the appeal is dismissed with leave to appellant, if desired, to withdraw record, abstracts and briefsj from the files.