Page:Federal Reporter, 1st Series, Volume 7.djvu/402

 390 ���FEDSBAL BSPOKTEB. ���and pay ratably over $10,000,000, to be used in extinguisliing the floating debt of the corporation; thai to eaeh sub- soriber shall be iasued a writing, the form of which is yet undetermined, entitling hitn to receive 6 per cent, on the Bum of $50 for each $15 paid by him ont of the net earn- ings of the corporation, after paying all ftxed charges and a dividend of 6 per cent, upon the eommon shares, and that for further interest these subscriptions will rank pari passu with the eommon shares. Is this proposition, then, author- ized by the charter of the corporation ? �The principle by which we must be guided in answering this question bas been so often the subjeot of judieial recog- nition that it has grown into an axiom of construction. It is this: That the exercise of powers which are not conferred upon a corporation by express concession or clear implica- tion must be taken as denied to it. It is thus comprehen- sively stated by Mr. Justice Miller, in Thomas v. The West Jersey R. Go. 101 U. S. 82: �" We take the general doctrine to be in this country, though there may be exceptional cases and aome authorities to the contrary, that the powers of corporations organized under legislative stalutes are such, and such. only, as those statutes confer. Conceding the rule applicable to all stat- utes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measurp of its powers, and that the enumeratlon of these powers implies the exclusion of all others." �Whatever power the defendant has in the premises can only be found in its general authority to borrow money. Neither in the charter of the defendant, nor in the special act which authorizes it to sell bonds, which it may issue be- low par, is anything contained to legalize the contested proposition, unless it can be put on the footing of a loan. Has it then this character ? I think plainly not. It does not propose to create the relation of debtor and creditor between the defendant and the subscribers. The money obtained by the defendant could not be regarded as borrowed, because that implies re-imbursement, and it is not demandable by the subscribers or payable by the defendant. It has not the essentiail and distingaishing qualities of a loan. It contem- ��� �