(1972) , 61 Op. Att'y Gen. 389 ( 1972 )

ROBERT C. ZIMMERMAN, Secretary of State

You inquire whether an operating Wisconsin railroad corporation can utilize the provisions of sec. 180.685, Stats., to merge into a nonoperating Wisconsin railroad corporation. It is assumed that such corporations can meet the requirements of sec. 180.685, Stats.

I am of the opinion that use of sec. 180.685, Stats., is proper.

Section 180.97 (1), Stats., provides that the provisions of ch. 180, Stats., are applicable to domestic corporations organized under provisions other than ch. 180, Stats., where such provisions are not inconsistent with provisions of the special statutes under which such domestic corporations were organized.

I am of the opinion that sec. 180.67, Stats., relating to the effect of "merger or consolidation" would apply. In such section the legislature has treated merger and consolidation as different acts having limited different effects. In case of merger between two or more corporations, there is one surviving corporation. In the case of consolidating of two or more corporations, a new corporation is created. Also see sec. 180.68, Stats.

Railroads are governed by ch. 190, Stats. However, there is no express provision as to merger set forth therein. Section 190.06, Stats., is concerned with consolidation of existing railroad corporations, and, while it can be argued that its provision might be applicable to mergers if there were no other applicable general statutes specifically relating to merger, it cannot be said to be inconsistent with a recently enacted general statute which expressly provides for merger. It does not appear that there are other specific provisions in ch. 190, Stats., which would limit the effect of merger if sec. 180.685, Stats., were used. See 47 OAG 264.

RWW:RJV