Page:Harvard Law Review Volume 8.djvu/315

299 LEASE OF RAILROAD. 299 holders to exchange all their corporate property for a telegraph line of equal value, and to change their business from that of a common carrier of persons and chattels to that of a telegraph company (the State waiving any objection it might make), would present no question of fact on which it could be held that a dis- senting minority were bound. The telegraph business, taken in exchange for the railroad, could not be a mode or means of the Concord company's carrying on the railroad business, which, by the exchange, that company would abandon. On the question of incidental power, it would be immaterial whether the exchange were for ninety-nine years or for all time. In many cases the question whether a proposed change would be an exercise of an in- strumental power, — a power of carrying into effect the purposes of the charter, and accomplishing the objects for which the corpo- ration was formed, — is a question of fact. Can the Northern company buy one coal-mine or wood-lot for the purpose of obtain- ing fuel for their own use, and another for the purpose of carrying on the business of a coal or wood merchant? Can they build one shop for the purpose of making rails, bridges, and rolling-stock for their own use, and another for the purpose of making them for market? Can they erect a station twice as large as they now need, if its erection is economical and judicious in view of the future demands of their increasing traffic? When they have, judiciously or injudiciously, erected such a station, can they let half of it to a shoe manufacturer for three years, at the end of which time their railway business will probably require the whole; or must they suffer the loss of three years' income of half because a stockholder denies their power to make a lease? Many questions of com- bined law and fact cannot be answered with legal precision until their component parts are separated, and the facts are found. As a matter of fact, is the proposed corporate act a mode or means of the company's carrying on their business of transporting passengers and freight on their road between Concord and Lebanon? However difficult this question may sometimes be, some progress is made towards an intelligent decision when we cease to be con- fused by a blended mass of law and fact in a general question of corporate power, and begin to inquire what evidence there is on the question of fact. There is no evidence tending to show that, as a matter of fact, the lease of the Northern road is a mode or .means of the Northern company's carrying on the business, which, by the lease, that company abandon for ninety-nine years ; and the law of the case is not the opposite of the fact.