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deliberate waiver of a vote by all in the corporation having that right. But how can such a presumption be entertained, in the face of a remonstrance against the proposed election, made by some of the members on the ground of non-acceptance of the younger supplement? This is obviously out of the question. The record shows that the same persons who signed the written acceptance, also signed the requisition for a new election of trustees, claiming to be a majority of the stockholders; and that the votes subsequently cast were by the same individuals.

All this was done in disregard of a formal resolution, adopted by those then claiming to be trustees, repudiating the last supplement, and denouncing as illegal the election proposed to be held under it. This resolution was communicated by a committee appointed for that purpose, to the subsequent electoral meeting, but without effect. It will not do to say the resolution, as the act of a defunct body, was naught. It, at least, served to express dissent, entertained and expressed by a portion of the members-a dissent that could only be legally overcome at a meeting regularly convened to consider the proposed amendment. The opportunity to deliberate, and, if possible, to convince their fellows, is the right of the minority, of which they can not be deprived by the arbitrary will of the majority. That the call for an election, and the subsequent steps were in contempt of this right, is manifest. The attempt consequently defeats itself. We have, therefore, no hesitancy in holding there is an entire want of proof of the acceptance of either supplement.

Was the court of common pleas authorized so to declare in this proceeding, and so decree a new election? The relators insist the only question before that court was as to the binding efficacy of the April supplement; and that their title as trustees under the act of January was not in issue. But this objection proceeds from too narrow an estimate of the act of the 13th of April, 1840; though the 12th section of that statute speaks only of disputes between persons claiming to be duly elected to fill any office, its purview is broad enough to cover all questions arising on writs of quo warranto, between rival claimants of elective offices, though some of them may, as here, claim to hold by temporary legislative appointment. The object of the statute is to invest the court with power to settle the pretensions of all the claimants in the same proceeding, whether they be complainants or defendants, and whether in or out of possession. To exclude from its operation corporate officers, who, like these plaintiffs, derived their first appointment from the act of incorporation, in anticipation of a regular election, would be to sacrifice to literal interpretation, the plain intent of the law-givers. The act speaks of disputed elections between persons claiming to be duly elected, and these, doubtless, were principally regarded in passing its provisions. But cases like ours are within the mischief intended to be remedied, and so questionless within the equity of the statute, which, being highly remedial, ought to be so literally construed as to secure the attainment of substantial justice. Here, then, is a case of contested election, intimately con

nected with the title set up by the plaintiff and almost necessarily involving an investigation of it. Being within the object of the act, which was to end disputes at a blow, that title was as open to inquiry as the defendants. The result shows that neither party was entitled to enjoy, and this put it within the authority of the court to order a new election. This conclusion leaves to the company the right of determining, in an orderly way, whether it will accept of either supplement as an amendment of its charter, and if so, which of them? The dispute now existing may be so settled as to leave no room for future contest-a consummation much to be desired by a business corporation situate as this is. It is gratifying to find that the conclusions of the law are thus in harmony with the best interests of the corporators, and we accordingly recommend that steps be taken as soon as practicable to determine this unhappy disagreement.

Proceedings affirmed.

Note. See 1854, Troy and R. Co. v. Kerr, 17 Barb. (N. Y.) 581; 1859, Bangor, O. & M. R. Co. v. Smith, 47 Maine 34; 1866, City of San Antonio v. Jones, 28 Tex. 19; 1874, Kenton County Court v. B. L. T. Co., 10 Bush (73 Ky.) 529; 1876, Cincinnati, H. & D. R. Co. v. Cole, 29 Ohio St. 126; 1879, State v. Sibley, 25 Minn. 387; 1889, Gibbs v. Baltimore C. G. Co., 130 U. S. 396, 9 Sup. Ct. 553; 1892, Miller v. Am. Mut. Acc. Ins. Co., 92 Tenn. 167, 20 L. R. A. 765; 1896, State v. Taylor, 55 Ohio St. 61, 44 N. E. Rep. 513.

ARTICLE III. THE CHARTER-ITS CONTENTS.

Sec. 90. In general. The "means and instruments effecting incorporation may be numerous, consisting of statutes, articles of association, deeds of settlement, by-laws and notices, some of which are usually required to be recorded and others published. The convenience of using some short term to express all of these fundamental acts and instruments has led to the

adoption of 'constating instruments.'"' Field on Corporations, § 28.

Note. See supra, p. 133.

Sec. 91. Under special charter from the king, illustration:

1769. The Dartmouth College Charter.

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After a preamble setting forth the circumstances and reasons for granting a charter, it proceeds: "Know ye, therefore, that we do of our special grace, certain knowledge, and mere motion, by and with the advice of our counsel for said province, by these presents, will, ordain, grant and constitute that there be a college erected in our said province of New Hampshire by the name of Dartmouth College, for the education and instruction of youth Note. See the full charter of Dartmouth College, given in 4 Wheat. (U. S.) Reports, pp. 519-538.

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of the Indian tribes in this land, in reading, writing and all parts of learning which shall appear necessary and expedient for civilizing and Christianizing children of pagans, as well as in all liberal arts and sciences, and also of English youth and any others. And the trustees of said college may and shall be one body corporate and politic, in deed, act and name, and shall be called, named and distinguished by the name of the Trustees of Dartmouth College. * And for the more full and perfect erection of said corporation and body politic we do by these presents, for us, our heirs and successors, make, ordain, constitute and appoint our trusty and well-beloved [twelve persons named, 'the whole number of said trustees consisting, and hereafter forever to consist, of twelve and no more'], to be trustees of said Dartmouth College that the said trustees and their successors shall forever hereafter be, in deed, act and name, a body corporate, the name of the Trustees of Dartmouth College, 'shall be able

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by and by that name to have, get, acquire, etc.,' property, etc. 'And *to the intent that our said corporation may have perpetual succession and continuance forever, we * give and grant unto the Trustees of Dartmouth College, and to their successors forever, that there shall be once a year, and every year, a meeting of said trustees held at said Dartmouth College, at such time as by said trustees shall be agreed on, the first meeting to be called by the said Eleazer Wheelock,' etc., to conduct the affairs of the college; 'also that the said trustees and their successors, or the major part of any seven or more of them, which shall convene for that purpose as often as one or more of said trustees shall die, or by removal or otherwise shall, according to their judgment, become unfit or incapable to serve the interests of said college, do, as soon as may be after the death, etc., elect and appoint such trustee or trustees as shall supply the place of him or them so dying,' etc. Many other privileges concerning the management in detail of the college are expressly set forth.

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Sec. 92. Under a special law or act of the legislature, illustration:

1826. An act to incorporate the Baltimore and Ohio Railroad Com

pany.

Section 1. Be it enacted by the General Assembly of Maryland, That Isaac McKim (and eight others named) be, and they are hereby appointed commissioners, under the direction of a majority of whom, subscriptions may be received to the capital stock of the Baltimore and Ohio Railroad Company hereby incorporated; and they, or a majority of them, may cause books to be opened at such times and places as they may direct, for the purpose of receiving subscriptions to the capital stock of said company, after having given such notice as they may deem proper

Sec. 2. That the capital stock

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shall be $3,000,000, in shares of $100 each, 10,000 shares to be reserved for subscription to the state of Maryland, and 5,000 for the city of Baltimore and the remaining 15,000 shares may be subscribed for by any other corporation, or individuals; and as soon as 10,000 shares shall be subscribed, the subscribers * their successors and assigns shall be, and they are hereby declared to be, incorporated into a company by the name of the Baltimore and Ohio Railroad Company, and by that name shall be capable in law of purchasing and conveying estates, real and personal, * * * so far as shall be necessary for purposes * * * mentioned, and no farther, and shall have perpetual succession, and by said name may sue and be sued, and may have and

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use a common seal, which they shall have power to alter or renew at their pleasure, etc.

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Sec. 3. Provided for apportioning the stock if there were subscriptions received for more than 15,000 shares.

Sec. 4. Required one dollar on each share to be paid at the time of subscription, and the residue in such installments as may be required by the president and directors-not more than one-third in any year and only after sixty days notice; and upon failure to pay, the stock to be forfeited to the company, and may be sold by it.

Sec. 5. Provided that the charter should become forfeited if 10,000 shares were not subscribed within one year.

Sec. 6. Provided that when 10,000 shares were taken, "the said commissioners or a majority of them shall call a general meeting of the subscribers, at such time and place as they may appoint, and shall give at least twenty days' public notice thereof, and at such meeting the commissioners shall lay the subscription books before the subscribers then and there present, and thereupon the said subscribers, or a majority of them, shall elect twelve directors, by ballot to manage the affairs of said company, and these twelve directors, or a majority of them, shall have the power of electing a president of said company either from amongst the directors or others. Each stockholder shall be allowed one vote for every share owned by him, and he may depute any other person to vote for him as his proxy, and the commissioners, or any three or more of them, shall be judges of the first election of directors."

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Sec. 7. Provided for continuing the succession of the president and directors, by requiring them to be chosen annually on the second Monday of October, the state of Maryland and the City of Baltimore to appoint one for each 2,500 shares owned by them, but not to vote for others; the president and directors to appoint judges of elections and to fill vacancies in the board.

Sec. 8. Annual meeting of stockholders to be held, or called meetings at any time upon call by president and directors, or stockholders holding onefourth of the stock subscribed, on thirty days' notice.

Sec. 9. Statement of affairs of the company to be laid before shareholders at the annual meeting; a majority in value of stockholders may at a general meeting remove the president or any director.

Sec. 10. President and directors to take oath faithfully to discharge their duties.

Sec. 11. Reserved stock may be disposed of by directors opening books to receive subscriptions to the same.

Secs. 12-18. Directors were empowered to appoint all other officers and fix their compensation, make by-laws, increase the stock, negotiate loans, construct the road, make lateral roads, agree for land and materials, or condemn the same in the manner set forth, cross other roads, put the machinery on the road and operate it.

Sec. 18. Fixed maximum rates of transportation, forbade all persons from traveling upon the road without license of the company, and exempted shares from taxation.

Sec. 19. Provided for dividends from the net profits only.

Sec. 20. Provided for a penalty of $500 for willful injury done to the road. Sec. 21. Provided that the act should take effect on its passage.

Sec. 22. Provided that the road should be commenced within two years

and completed within ten years.

Sec. 23. Reserved a right to incorporate other companies.

Sec. 93. Under general laws. (a) The charter consists of (1) the provisions of the general corporation law, and (2) articles of incorporation, authorized thereby, and consistent therewith.

OREGON RAILWAY CO. v. OREGONIAN RAILWAY CO.1

1888. IN THE SUPREME COURT OF THE UNITED STATES.

I-39.

130 U.S.

[Error to the United States circuit court. The Oregonian Co., organized in Scotland under the English Companies Act of 1862, with authority to build and operate a railroad in Oregon, or sell or lease the same, constructed its road in Oregon, and then leased it to the Oregon Co. which was incorporated in Oregon under a general law, authorizing the formation of corporations for any lawful business, enterprise, pursuit or occupation. The articles of association provided that it might lease another railroad, and in accordance with this authority it leased, through its president and secretary, by direction of the board of trustees, the road of the Oregonian Co., which before had complied with the Oregon statutes authorizing foreign corporations to do business in the state, and providing that upon such compliance such foreign corporation should have the same rights, powers and privileges as domestic corporations. The Oregonian Co. had obtained judgment in the lower court for unpaid rentals under the lease. The Oregon Co. claimed this judgment was erroneous for the reason that the Oregonian Co. had no authority to dispose of its road in Oregon by lease, and the Oregon Co. had no authority to acquire one in that way.]

MILLER, J. * It may be considered as the established doctrine of this court in regard to the powers of corporations, that they are such and such only as are conferred upon them by the acts of the legislatures of the several states under which they are organized. A corporation in this country, whatever it may have been in England at a time when the crown exercised the right of creating such bodies, can only have an existence under the express law of the state or sovereignty by which it is created. And these powers, where they do not relate to municipal corporations, exercising authority conferred solely for the benefit of the public, and in some sense parts of the body politic of the state, have in this country, until within recent years, always been conferred by special acts of the legislative body under which they claim to exist. But the rapid growth of corporations, which have come to take a part in all or nearly all of the business operations of the country, and especially in enterprises requiring large aggregations of capital and individual energy, as well as their success in meeting the needs of a vast number of most important commercial relations, have 1 Statement of facts abridged. Arguments, dissenting opinion of FIELD, J., and parts of the opinion of MILLER, J., omitted.

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