*694On Application for Behearing.
Breaux, J.Plaintiff and appellant’s earnest brief on application for rehearing', and the able argument of its counsel at. bar have led us carefully to reconsider the issues of the cause.
Plaintiff again in argument levels its attack against the charter by-legislative act of the Metairie Company, on the ground that it had never been accepted and that the Metairie Company had never come into,existence, and that since this company had never acquired a corporate existence, it was not within the terms of Act 158 of 1874, (p. 18, Acts of 1875), which authorized consolidation only of corporations “now existing under general or special laws.”
Plaintiff and appellant again insist on application for rehearing that, oven granting that the charter of the Metairie Company had been accepted, there had been no organization under it and that, in consequence, its attempted consolidation with the New Orleans, City and Lake Bailroad Company was of no effect, and void under the terms of a statute which applied alone to existing corporations.
■ Further, on this application for rehearing, the insistence" is that there was a non-compliance with the conditions prescribed by the act of 1874 for a valid consolidation in that there was no resolution of the Boaid of Directors of the Metairie Company authorizing the consolidation, nor any meeting of the stockholders approving or ratifying such a resolution, both of which are required by the act of 1874. Plaintiff and appellant also urge that the company had no Board of Directors, bur in the attempted consolidation was represented by a single stockholder acting for himself and as agent of all the other stockholders, from whom no powers of attorney appear to have been introduced, the asset ted agency being based entirely upon the statement of the one who assumed to act as agent. Those and other grounds of attack were directed against the existence of the Metairie Company.
Plaintiff and appellant further contend that the act of 1874, in questiou, conferred the power of consolidation on business and manufacturing corporations alone, and that the words of description of the act did not include a street railroad company, such as the New Orleans, City and take Bailroad Company, nor a combination of a freight and passenger road, such as the Metairie Company, and that hence the pretended consolidation was void for want of statutory authority, which *695is as essential for the consolidation of two corporations as it is for the creation of either of them originally.
Plaintiff and appellant argue that the first requisite of any contract is that there shall be persons legally capable of contracting, the second, consent to the contract legally given; that this being wanting, it follows that the act of 18T4 was not compiled with in form and substance.
This court, in its first opinion, held that the conclusion at which rhe opinion arrived, rendered it unnecessary to determine whether the New Orleans, Metairie and Lake Railroad Company ever acquired the si.aius of a corporation de jure or de facLo. We can only say in answer to plaintiff’s and appellant’s insistence, at this time, that we have not found good reason to set aside our decree. We are inclined to the opinion that the statute of 1882, another statute upon which defendant relies to sustain its right, is not as limited in its terms as plaintiff contends, at any rate, that the State authorities did not intend to offer a grant exclusively to railroads hereafter to be built and, at the same time, retain the right, without the least notice, of compelling the railroads already constructed to pay rent for all extensions already constructed. But be that as it may, there are other statutes, to say the Past, under which the defendant has the color of right which cannot be divested nor lessened in proceedings such as that now before us for decision. Besides, two Constitutional Conventions deliberated regarding the New Basin Canal and its rights without adopting ordinances indicating the least intention to havej it; that prior to their respective dates, this defendant railroad was to be treated as the lessee of the State or of the Board of Control of the Canal Company.
It must be borne in mind that this is a suit for rental and not a suit to recover possession of property. In face of the different statutes and .ff the attempt at consolidation, if it must be considered as an attempt, and of the many years that have elapsed without the least intimation of an intention to charge rent, we do not think that plaintiff is entitled to rental.
The record discloses that the defendant has occupied the ground for which rent is now claimed for prior years, in good faith; that large amounts have been expended in making improvements which have been of benefit to the State and its property, and now, even if the State is entitled to resume possession, it should be resumed without treating the defendant as having, during these many years, been a trespasser indebted for rent in a large amount. Above all, we are not convinced *696that plaintiff is entitled to recover rent, even if anything be due on that ground. It might be different if this were an action for possession. To recognize this iffaintiffi as a lessor, would be, in effect, to recognize its right to lease property of the New Basin Oanal Company. This right is expressly withheld from the latter corporation under the Constitution of 1879, and the Constitution of 1898.
The suit, if successful, would have the effect of placing in the treasury of the Canal Company the amount claimed .for rent, despite the fact that it cannot be a lessor of any of its property. While it is true that the State is a party to the suit, it is also true that the State, so far as is shown by the record, appears in the suit to recover rental of this property for the Canal Company, a claim which even the State cannot set up under the plain provision of the law, for the reason that its co-plaintiff, for which it sues, cannot be a lessor of the property.
But we gather from the evidence, that without the constitutional ordinances prohibiting the plaintiff Oanal Company from leasing its property, the defendant would not be responsible to the Oanal Company for the rent claimed. The State, as the owner of the property, recognized, doubtless, that a railroad along its banks would be a benefit to the canal. For that reason we infer she gave to the Metairie Railroad Company, in 1869, the privilege of constructing a road north of, and adjacent to, the new canal, and directed the representatives of the Canal Company “to afford every facility for the constructing of the railroad herein provided for, which shall also be constructed as to add to the efficiency of said levee.”
Even if the plaintiff, by not complying with the laws relating to consolidation of corporations, had lost its identity as a corporation, the State or the Canal Company, as we construe the different acts upon the subject, and the benefit received from the railroad as a highway between the city and the lake, would not be in a position to recover the rental claimed.
Even without regard to the pleas urged of estoppel and prescription, the State, because of express legislation, is precluded from recovering damages for the New Basin Oanal.
For reasons assigned, it is ordered, adjudged and decreed that the judgment originally rendered be and it is hereby reinstated and anew made the judgment of this court, affirming the judgment of the District Court, and rehearing is refused.