These are perpetual succes or by the general laws of the state. sion, the power to contract, to sue and be sued by the corporate name, to hold land for the purposes of the incorporation, to have a common seal, and to make its own by-laws or statutes, not inconsistent with the charter, or the laws of the state.1 And it may be proper to say, that it is implied in the grant of all business corporations, that they possess the power to acquire and convey such property, both real and personal, as shall be found reasonably necessary and convenient, for carrying into successful operation the purposes of their incorporation. And when there is no limitation upon this power, in the act of incorporation, it can only be limited by writ of mandamus or injunction, out of chancery, at the suit of the attorney-general, or by some other proceeding on the part of the people. Until some such public interference, the title of the corporation will be good. 2. The right of the majority of a joint-stock company, whether a copartnership or a corporation, to control the minority, is a consideration of vital importance, and will be more extensively discussed hereafter.2 3. There can be no doubt the general principle of the right of the majority to control the minority, in all the operations of the company, within the legitimate range of its organic law, is implied in the very fact of its creation, whether expressly conferred or not.3 4. And perhaps it is equally implied in the fundamental compact, that the majority have no power to change the organic law of 1 Walford, 69; 1 Black. Comm. 475, 476; 2 Kent, Comm. 277; where the power of amotion of members for just cause is added. 2 Post, §§ 56, 212. 3 Louisville, Cincinnati, & Charleston Railw. v. Letson, 2 Howard (U. S.), 497; s. c. 15 Curtis, Cond. 193. The very definition of a corporation, that it is an artificial being composed of different members, and existing and acting as an abstraction, and having its habitation where its functions are performed, presupposes that it must act in conformity with its fundamental law, which is according to the combined results of its members, or the will of the majority. But this will cannot change its fundamental law without changing the identity of the artificial being, to which we apply the name of the corporation. See also St. Mary's Church, 7 S. & R. 517; New Orleans, Jackson, &c. Railway v. Harris, 27 Miss. 517; Ex parte Rogers, 7 Cowen, 526, which holds, that if the charter requires a certain number to be present, in order to the performance of a particular act, it is requisite that the number remain till the act is complete, and if one depart before, although wrongfully, it will defeat the proceedings. the association, except in conformity to some express provision therein contained. 5. This principle lies at the foundation of all the political organizations in this country, which, in theory certainly, are not liable to be changed by the will of the majority, except in the mode pointed out in the constitution of the state or sovereignty. And corporations are not subject to the ultimate right of revolution, which is claimed to exist in the state, and which may be exercised by the law of force, which is a kind of necessity, to which all submit, when there is no open way of escape. This could have no application to a commercial company, whose movements are as much under the control of the courts of justice as those of a natural person. 6. And in this country it has been held, that the acceptance by the majority of a corporation of an amendatory act, does not bind the minority. An amendment to the charter of a * corporation, to become binding, must either have been applied for in pursuance of a vote of the stockholders, or else have been accepted by such vote; or it must have been acted under for such a length of time as to raise a reasonable presumption of knowledge in the shareholders and subsequent acquiescence.5 7. And a contract of a manufacturing corporation to employ the plaintiff, a stockholder, during the time for which the corporation is established, that being indefinite, is not released by a majority of the company voting to dissolve the corporation and wind up its concerns, discharging the plaintiff from his employment, and transferring the property to trustees, to pay the debts and distribute the surplus among the stockholders, and giving notice to the executive department of the state, that they claimed no further interest in their act of incorporation." 4 New Orleans, &c. Railroad v. Harris, 27 Miss. 517. But this rule will be understood with some limitations. If it be an amendment within the ordinary range of the original charter, giving increased facilities for the accomplishment of the same objects, it may be accepted by the majority, so as to bind the whole company. But if it be a fundamental alteration of the constitution of the company, it must have either the express or implied assent of all the corporators, to make it binding. Post, pl. 8; § 56, pl. 3, 7. * Illinois River Railway v. Zimmer, 20 Ill. 654; Same v. Casey, ib. Revere v. Boston Copper Co., 15 Pick. 351. This case, although put mainly upon the ground of plaintiff's rights being independent of the law of the association, yet incidentally involves the right of the majority of the corporators to 8. But the English cases seem to suppose, that it is incident to every business corporation to obtain such extension and enlargement of its corporate powers, as the course of trade, and enterprise, and altered circumstances, shall render necessary or desirable, not altogether inconsistent with its original creation.7 *9. Hence it was held that a court of equity will not, at the instance of a shareholder, restrain a joint-stock incorporated company, whose acts of incorporation prescribe its constitution and objects, from applying, in its corporate capacity, to parliament, and from using its corporate seal and resources, to obtain the sanction of the legislature, to the remodelling its constitution, or to a material extension and alteration of its objects and powers.? 10. In one case where the purpose of the company was to apply to parliament for leave to convert part of its canal into a railway, the vice-chancellor granted the injunction against applying any of its existing funds to the proposed object. This is the more common view of the subject in this country, and to a great extent in England.9 11. But this right of the minority of the shareholders to inter change its constitutional law. See also Von Schmidt v. Huntington, 1 Cal. 55, and Kean v. Johnson, 1 Stockton, Ch. 401, where it is held, that where the charter is granted for a limited time, it must continue in operation till the term expires, unless, perhaps, in case of serious loss, or with the consent of all the corporators, and others having any legal interest in the question. The same rule was recently declared in Louisiana. Lodge No. I. v. Lodge No. I., 16 La. Ann. 53. And it was here considered, that a resolution passed by the majority of the members of a corporation donating all the property of the company to a new corporation of which the members voting are also members, and the delivery of the same to such corporation in pursuance of such resolution, is void. 7 Ware v. Grand Junction Waterworks, 2 Russ. & My. 470; (13 Eng. Ch. Rep. 126.) Lord Brougham seems here to suppose, that the right of petition to parliament, for enlargement of powers, is an implied incident of all business corporations, by which the subscribers are bound, unless some express probibition is inserted in their charter. But the more common implication in this country certainly is, that the original shareholders are not bound by any such alteration, unless such power exists, in terms, in the original charter. 8 Cunliff v. Manchester & Bolton Canal Co., 2 Russ. & My. 480, in note. But it is here stated, that a few days afterwards, one Maudsley filed a bill against the same company and for a similar object. The cause was heard on its merits, and the suit dismissed with costs. Any act beyond the scope of the constitution of the company requires the consent of all the members. Burmester v. Norris, 6 Exch. 796; s. c. 8 Eng. L. & Eq. 487. 9 Post, $$ 56, 181, 212. fere, by way of injunction, to restrain the majority from obtaining permission to alter the constitution. of the corporation, may undoubtedly be lost by acquiescence.10 Thus where the shareholders knew of the purpose of the directors to apply the funds of the company to the construction of part only of the road, to the abandonment of the remainder, and remained passive for eighteen months, while the directors were applying large sums to the completion of this part only, the court refused to interfere by injunction.10 12. And if one of the shareholders, who has acquiesced in the diversion of the funds, be joined in the suit with others who have not, no relief can be afforded.11 And there can be no doubt of the soundness of this principle, although the effect of its application may be to produce a fundamental alteration of the constitution of a corporation, and thus to enable them to do what they had no power before to do. But this is only applying to the case the principle of implied consent of all the shareholders, resulting from silence, which is all that is requisite in any case, to legalize the alteration of the charter of a private corporation. 13. It is said in a late case by an eminent equity judge, ViceChancellor Stuart: 12" Although, generally speaking" "there can be no doubt of the soundness of the principle, that the directors and the majority of the company may be restrained from employing money, subscribed for one purpose, for another, however advantageous," "and although this is the law as to joint-stock companies, unincorporated and unconnected with public duties or interests, it has not been applied to corporate companies for a public undertaking, involving public interests and public duties under the sanction of parliament. In such cases the court of chancery has 10 Graham v. Birkenhead, &c. Railway, 2 Mac. & G. 146; s. c. 6 Eng. L. & Eq. 132; Beman v. Rafford, Sim. N. S. 550. Lord Cranworth says, "This court will not allow any of the shareholders to say, that they are not interested in preventing the law of their company from being violated." Ffooks v. London & S. W. R., 1 Sm. & G. 142; s. c. 19 Eng. L. & Eq. 7. But one creditor of a corporation cannot, by injunction, restrain another creditor of the same grade from obtaining prior payment by virtue of an execution issued upon a prior judgment. Gravenstine's Appeal, 49 Penn. St. 310. 11 Ffooks v. London & S. W. R. 1 Sm. & G. 142; s. c. 19 Eng. L. & Eq. 7, opinion of Stuart, V. C. and cases cited.. 12 Ffooks v. London & S. W. R. supra. permitted the use of the corporate seal, and the moneys of the company, to obtain the sanction of parliament to purposes materially altering the interests of the shareholders, according to the contract inter se. This was done in the case of Stevens v. South Devon Railway Company." 13 The learned judge therefore concludes, that, although the principle first stated by him may apply to the case of public railway companies in general, "it must be taken to be subject to many qualifications, and requiring much caution and consideration" in its application. 14. The same learned judge further adds, upon the important subject of such proceeding being taken by one in the interest of a rival company: "It has been suggested that this suit is constituted to serve the purposes of another set of shareholders. If it had been established that the real object of seeking this injunction had been to serve the interests of a rival company, I should have considered that a circumstance of great importance in determining the rights of the plaintiffs to any relief. No doubt it has been held in several cases, that the mere fact that the plaintiffs are shareholders in a rival company is no reason for the court in a proper case refusing its aid, to prevent the violation of contracts. But when the fact is established, that, under the pretence of serving the interest of one company, the shareholders in a rival company, by purchasing shares for the purpose of litigation, can make this court the instrument of defeating or injuring the company into which they so intrude themselves, in order to raise questions and disputes on matters as to which all the other members of the company may be agreed, I cannot consider that in such a case it is the province of this court ordinarily to interfere. In questions on the law of contracts, where there is a discretionary jurisdiction in this court, circumstances affecting the condition of the contracting parties, and the origin and situation of their rights in relation to the subject-matter of the contract, deserve great consideration. 15. But in a recent English case 14 it was determined by ViceChancellor Wood, that the court will not, upon the application of the minority of the members of a corporation, interfere with a resolution of the company voluntarily to wind up its concerns unless the resolution was obtained by fraud, or by overbearing conduct, or by improper influences. 13 13 Beavan, 48; s. c. 12 Eng. L. & Eq. 229; s. c. 9 Hare, 313. |