by the stockholders at the time of becoming such that any unwilling one of them would generally be entitled to have the attempted consolidation enjoined.1

The doctrine that the power of the state under the reservation reaches further into strictly private objects and business affairs of a railroad corporation than of other private corporations is not only unsound in principle, but it is impolitic and prejudicial to the state. It tempts-yea, forces-railroad companies to become factors in politics and legislation in defence of their interest.

1063. Alterations with respect to capital stock.—Where an act was passed fixing the capital stock of a railroad company at not less than eleven thousand dollars, and a supplemental act was passed providing that the capital stock should not be less than nine thousand dollars, it was held that the supplemental act was not a proper exercise of the power reserved to alter and repeal, and that a party who had subscribed for shares under the original act could not be compelled to pay his subscription until subscriptions amounting to eleven thousand dollars had been made.2

1 See Nugent v. Supervisors, 19 Wall. 241; Bishop v. Brainerd, 28 Conn. 289; Hanna v. Cincinnati, etc., R. R. Co., 20 Ind. 30; Bish v. Johnson, 21 Ind. 299. See Shelbyville, etc., Turnpike Co. v. Barnes, 42 Ind. 498; Kenosha, etc., R. R. Co. v. Marsh, 17 Wis. 13.

2 Oldtown, etc., R. Co. v. Veazie, 39 Me. 571. In this case Chief Justice SHEPLEY said: "The legislature might as well have attempted to alter a contract between the corporation and one of its members respecting the construction of the road, as a contract respecting any part of its capital. If a corporation, being party to a contract with one of its corporators, might by the assistance of the legislature absolve itself from the performance of any part of the contract, it might from the whole, and might require payment of the money subscribed, without allowing the subscriber to derive any benefit from it. It is the charter only, and the rights and liabilities of the corporators as such in consequence thereof, that can be varied by an act of the legislature, and not the private contracts made between the corporation as one party, and its corporators as the other."

§ 1064. The tendency of judicial decision. The tendency of the courts is in the direction of restricting the exercise of the reserved power to the making of alterations in which the public has an interest and to matters which do not materially affect the mutual rights and undertakings of the stockholders. The stockholders have, by their subscriptions, obligated themselves to devote their capital to the accomplishment of a designated object, and neither the directors, nor a majority, nor the state, nor all together can compel them to abandon the original undertaking and enter into one entirely different.1

§ 1065. Amendments conditioned upon acceptance. Sometimes the reservation of power to make alterations is contingent upon the acceptance by a majority of the stockholders. It is evident that such a reservation amounts to but little, as immaterial alterations could be offered and accepted without such reservation, while fundamental changes can in no case be made without unanimous consent. Where, however, an absolute power of alteration or repeal is reserved, the

1 Fry's Executor v. Lexington, etc., R. R. Co., 2 Metc. (Ky.) 314; Pearce v. Madison R. R. Co., 21 How. 441; Delaware, etc., R. R. Co. v. Irick, 23 N. J. L. 321; Tuttle v. Mich. Air Line Co., 35 Mich. 247; New Jersey, etc., R. R. Co. v. Strait, 35 N. J. L. 322; Winter v. Railroad Co., 11 Ga. 438; Wilson v. Railroad Co., 33 Ga. 466; Railroad Co. v. Sullivan, 57 Ga. 240; Pierce R. R. 68; Wilter v. Railroad Co., 20 Ark. 463; Pl. R. Co. v. Arndt, 31 Pa. St. 317; Plank R. Co. v. Lapham, 18 Barb. 315; R. R. Co. v. Pattle, 23 Barb. 21; Stevens v. R. R. Co., 29 Vt. 545; Thompson v. Guion, 5 Jones, Eq. 118; Turnp. Corp. v. Locke, 8 Mass. 267; Hester v. R. R. Co., 32 Miss. 378; Railroad Co. v. Marsh, 17 Wis. 13; R. R. Co. v. Elliott, 10 Ohio St. 57; Railway Co. v. Hodgens, 77 Pa. St. 368; Belton Corp. v. Sanders, 70 Tex. 699. When the general law under which a charter was obtained authorized amendments to the charter increasing the capital stock and changing the route but did not authorize a change in the termini, it was held that a subsequent act changing one of the termini without the consent of a stockholder released him from his subscription. Snook v. Georgia Imp. Co., 83 Ga. 61; 9 S. E. 1104, the court saying: "The state has no power to make any material or essential alteration in the contract between the members themselves and the corporation.”

corporators may be compelled to either accept it or go out of existence as a corporate body.' And non-acceptance without doubt may be made a cause of forfeiture.2 Acceptance of the provisions of a subsequent act wherein chartered right conferred in a previous act are taken away is a waiver of the right to object to the constitutionality of the former as impairing the contract.3 Changes which are immaterial to the corporation are presumed to be immaterial to each and every stockholder.+

§ 1066. Effect of repeal upon the property rights of the corporation. The title to none of the property of the corporation can be affected nor any vested rights divested by the exercise of the reserved power to repeal the charter. These remain unaltered in the shareholders and creditors as in case of voluntary or involuntary dissolution of the corporation under statutes; or if the legislature has not provided any special remedy for winding up the affairs of the corporation upon dissolution, courts may enforce such rights by the means within their power.5 Where the power is reserved" to alter or repeal," it is sometimes difficult to decide whether a particular act was intended to operate as a mere alteration or as an absolute repeal. It is in each

1 Yetman v. B'k of Old Dominion, 21 Gratt, 598.

2 Marlborough Mfg. Co. v. Smith, 2 Conn. 579; Brown v. Fairmount Mine Co., 10 Phil. 32; Venner v. Atchison, etc., R. R. Co., 28 Fed. Rep. 581.

3 Monongahela Bridge Co. v. P. & B. P. R. Co., 114 Pa. St. 478; 9 A. 233. Delaware R. R. Co. v. Tharp, 1 Hous. (Del.) 149; Irvine v. Turnpike Co., 2 Penn. & W. 466; Ill. Riv. R. R. Co. v. Zimmer, 20 Ill. 654; Barrett v. Alton & Sangamon R. R. Co,, 13 Ill. 504; Sprague v. Ill. R. R. Co., 19 Ill. 174.

5 Greenwood v. Freight Co., 105 U. S. 13; Ashuelot R. R. Co. v. Elliot, 58 N. H. 451, 455. "Where an act of incorporation is repealed few questions of difficulty arise. Equity takes charge of all the property and effects which survive the dissolution and administers them as a trust fund primarily for the benefit of the creditors. If anything is left it goes to the stockholders. Even the executory contracts of the defunct corporation are not extinguished." Curran v. State of Arkansas, 15 How. 304; Shields v. Ohio, 95 U. S. 324.

case a question of legislative intention depending for determination upon its own circumstances and the wording of the statute, but repeals by implication are not favored. Legislative intent to abrogate the particular enactment in an earlier statute by a general provision in a later statute is sufficiently manifested where the provisions of the two enactments are so inconsistent that they cannot stand together.1 Unless a contrary intention plainly appears, legislation is construed to be prospective in its operation, and the repeal of a general incorporation act and the enactment of a new one would generally be held to be a provision of law for the government of future corporations only.2

§ 1067. When the right to repeal will depend upon a judicial ascertainment of facts.-The right to alter, amend or repeal may be reserved unconditionally, or the reservation may be qualified and made to depend upon the happening of some event or upon some nonfeasance or misfeasance of the corporation, such as the nonuser, misuse or abuse of its franchise. In the former case the legislature is itself the sole judge of what circumstances justify an exercise of the power, and it may arbitrarily repeal, alter or amend the charter without the consent of the corporators. And it has been held that in the latter case the legislature may act in the

3

1 Union Improvement Co. v. Commonwealth, 69 Pa. St. 140; State v. Commr's of R. R. Taxation, 37 N. J. Law, 230; Webb v. Ridgely, 38 Md. 364. 2 Freehold Mut. Loan Ass. v. Brown, 29 N. J. Eq. 122; United Heb. Ass'n v. Benshimol, 130 Mass. 325. Compare Wilson v. Tesson, 12 Ind. 285.

3 Thornton v. Marginal Freight Ry. Co., 123 Mass. 32; Kathrops v. Stedman, 13 Blatch. 134; s. c. 42 Conn. 590; McLaren v. Pennington, 1 Paige, 107; Mayor of Baltimore v. Pittsburgh, etc., R. R. Co., 1 Abb. (U. S.); Commr's of Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446; Mayor of Worcester v. Norwich, etc., R. R. Co., 109 Mass. 113; Greenwood v. Freight Co., 105 U. S. 13, 17; Zabriskie v. Hackensack, etc., R. R. Co., 18 N. J. Eq. 192; Griffin v. Kentucky Ins. Co., 3 Bush. 592; Wilson v. Tesson, 12 Ind. 285; Erie, etc., R. R. Co. v. Casey, 26 Pa. St. 287; Sinking Fund Cases, 99 U. S. 700.

premises upon such information as it possesses and repeal the charter.1 But it was admitted in some of these cases that the fact of misuse or abuse was a fact upon which the constitutionality of the repeal depended and might be afterwards inquired into collaterally.

But there are weighty arguments in favor of the contrary view, and several cases have decided that the power of the legislature to repeal a charter under such circumstances cannot be exercised until there has been a judicial determination of the facts in some form.2

1 Commonwealth v. Pittsburgh, etc., R. R. Co., 58 Pa. St. 46; Erie, etc., R. R. Co. v. Casey, 26 Pa. St. 287; s. c. Grant's Cas. 274. See Crease v. Babcock, 23 Pick. 334; Miners' Bank v. United States, 1 Morr. (Iowa) 482. In the first of these cases BLACK, J., advanced this forcible argument against the necessity of a prior adjudication of the facts authorizing an appeal: "When the abuse of a charter is judicially ascertained the corporation will be dissolved without the intervention of the legislature, and the court could not decide the fact to be true without pronouncing the judgment of forfeiture. The legislature certainly meant to reserve something more than the right to dissolve the corporation after it shall be dissolved by the court. The power to kill what is already dead is no power at all."

2 Flint, etc., Plank Road Co. v. Woodhull, 25 Mich. 99. See Delaware R. R. Co. v. Tharp, 5 Harr. (Del.) 454; Mayor of Baltimore v. Pittsburg, etc., R. R. Co., 1 Abb. (U. S.), 150.