Page:Harvard Law Review Volume 8.djvu/313

Rh selves together, by written or printed articles of agreement, for the purpose of forming a railroad corporation," is the language of the Act. They are no more made a body by the law than they would be if they should form a corporation under the Act of 1883, or an unincorporated partnership under the common law. Whether they are incorporated or not, their company is formed by their contract with each other, and it has such powers and duties as the law allows them to give it, and such as the law grants and imposes. For whatever legal purposes their corporate body may be regarded as unreal, the fiction does not vest all the property in an imaginary being, and does not make the shareholders owners of an imaginary capital stock, for the purpose, or with the consequence, of giving to the majority of them, or to the State, a leasing power which the majority or the State would not have if the partnership were not incorporated.

As the plaintiffs could assent to the lease only in person, or by some agent or agents, and as they have not personally approved it but have seasonably opposed it, one question is whether, by becoming, stockholders, they conferred a general leasing power over their shares upon a majority of the corporation. Whether the agents' power given by the plaintiffs to the majority is now regarded by either of those parties as too much or too little, it cannot be revoked or diminished by the minority, or increased by the major- ity. Neither party have any legal cause of complaint against tlleir own agreement. If the plaintiffs are dissatisfied with the control they have given the majority as their agents, they can withdraw from it by the simple process of selling their shares; if the majority are embarrassed by the need of a larger agency, they can liberate themselves by the same process. The question, whether each of the plaintiffs, by the act of buying a share, gav the majority a general leasing power over that share, is not affec by the circumstance that such power, if given by him, couild not be lawfully exercised utntil the State consented, as it did by the Act of 1883, to accept the lessees as substitutes for the lessors in the performance of the lessors' public duties. But the extent of the power vested in the majority may be obscured by overlooking the widely different origins of that power, and the distinction between the stockholders' private property which they did not receive from the State, and the public rights which they exercise as State agents. Eminent domain not being exercised over the plaintiffs' shares, it is necessary to observe the difference between