Page:Harvard Law Review Volume 8.djvu/415

399 LEASE OF RAILROAD. 399 other stockholders is legislative, all contractual power is legisla- tive. A decision sustaining this lease would change the private right of making contracts into a public right, take it from all pri- vate companies and private persons who now have it, and bestow it exclusively upon those who have the constitutional power of making law. The contract made by the stockholders of the Union Locks & Canal with each other, and by the stockholders of the Northern Railroad with each other, and written in the charters of those com- panies, could have been so written as to authorize the directors, or a majority of the stockholders, or two-thirds of them, or each of them, or one of them specially designated, or any other person, acting as agents or agent of the company, to take the company, with the State's permission, into any and all business that men are capable of doing. In neither case is there such a contract, ex- press or implied. In neither case is there a stipulation, express or implied, that a majority, or any other part of the company, may put the shares of the rest into any business except that specifically described in the contract, and any other that comes within the incidental power of doing what is reasonably necessary to enable the company to do that business. In the present inquiry, it is not material whether the effort of a partnership majority to alter the partnership contract is made directly and in express terms, or indirectly by an acceptance of corporate power. A vote of the majority of the Farmers' and Mechanics' Store accepting a charter authorizing the firm to buy and sell ardent spirits, would have been as unavailing against the twelfth article, as the vote amending that article without an Act of incorporation. A material alteration of the partnership contract of the Northern Railroad effected by an acceptance of corporate power, or in any other way, being an exercise of authority which that contract does not confer upon the majority, is not validated by cir- cuity of method. " The directors of the Northern Railroad, and two- thirds of the voting stockholders of that company may accept, for themselves and the other stockholders, the grant of leasing power hereby made to that company." Such a clause, in the Act of 1883, would have been inserted on the theory that the directors and two- thirds of the voting stockholders were thereby made State agents whose services could be dispensed with by enacting that " The leas- ing power, hereby granted by the State to the Northern Railroad, is hereby accepted by the State for that company." Either clause 53