Page:Harvard Law Review Volume 8.djvu/314

298 298 HARVARD LAW REVIEW. that private authority over each share of the private property which its owner alone can give the majority, and that public agency which the public alone can give them. The lease of the Northern to the Lowell is an attempt to com- pel the plaintiffs, dissenting stockholders of the Northern, to exchange, for ninety-nine years, all their interest in the Northern for an annuity, secured by a right of entry, practically equiva- lent to a mortgage enforceable by strict foreclosure. The possi- bility of a non-payment of the annuity, and a resumption of the carrier business by the Northern, has no bearing on the question of the validity of the exchange of that business for the annuity. This question is to be decided on the possibility and the presump- tion that the Northern will have no occasion to resort to its security. The circumstance that the money to be received by the Northern is divided into many sums, due at different times, is immaterial. The law of the case is what it would be if the price paid for the estate of ninety-nine years had been paid in a single sum before the purchaser took possession of the road, and the security given were merely for the performance of covenants not relating to the payment of the price. The payment of the whole price in one sum, and the division of it among the North- ern stockholders, would leave them members of their corporation and owners of an estate in remainder. Instead of being a step in a process of dissolving the Northern company, and winding up its affairs, the lease requires that company to " keep up and pre- serve its organization." Whether each stockholder's share of the price of the estate sold is paid to him in one sum at one time, or in many sums at many times, the sale of the road for ninety-nine years is not a provision for the Northern company's working the road, which, by the terms of the sale, is to be worked during that time, not by the Northern and the Lowell as joint principals, nor by the Lowell as agent of the Northern, but by the Lowell for the Lowell as sole principal. " If the directors of the Concord Railroad should vote to build a line of telegraph on its road from Nashua to Concord, and stock- holders should ask an injunction against the execution of the vote, one question would be, whether a telegraph line is reasonably necessary for working the road and carrying into effect the pur- poses of the charter. It would be largely, if not wholly, a question of fact." ^ But a vote of the directors and a majority of the stock- 1 Burke v. Concord Railroad, 6i N. H. i6o, 244.