Page:Harvard Law Review Volume 8.djvu/420

404 404 HARVARD LAW REVIEW. that a limit of the legislative power of amending the charter, even with the consent of the corporation, might perhaps be found in the doctrine that the corporate powers cannot be extended to en- terprises or operations different in their nature and kind from those comprehended in the original charter.^ As each stockholder, by taking a share under an alterable charter, assented to an exer- cise of the entire legislative power of alteration, the doctrine of the Old Colony Case is that he assented to an amendment author- izing the company to extend their road by connecting it with, and becoming lessees of, all similar roads, and taking assignments of all human business " of a nature similar to" that "embraced within the original grant of power." After the company had ex- hausted its power of expansion within the limit of similarity, this doctrine of the enlargement of one kind of business, if sound, would not sustain a legislative amendment authorizing the com- pany to transfer all its possessions by a lease under which the lessee would take the place of the lessor in the lessor's common- carrier business. As that would be all the business of that kind in the world, the subsequent business of the lessor would be of a different kind. A leasehold extension of the Old Colony, leaving that company for a short time in the business of a common carrier on its original track between Boston and Fall River, followed by its transfer of that track to a lessee for ninety-nine years, would illustrate the difference between taking a lease and giving one. A legislative power of authorizing a majority of the stockholders to make leases, as well as accept them, would be based on the theory that each subscriber, by taking a share of stock and paying one hundred dollars to be used in building and operating a railroad from Boston to Fall River, agreed not only that he might be em- barked in the operation of that and all other railroads, but also that he might be thrown out of the carrier business of the road he helped to build, and exposed to the risks of all the railway invest- ments of mankind, except the one for which he subscribed. " The power of the proprietors, acting by a majority, ... is limited to matters properly embraced within the purposes for which the cor- poration was created."^ 1 Page 247. 2 In re N. S. Meeting-house, 13 Allen, 497, 510. [Contrast Dorris v. Sweeney, 60 N. Y. 463, with S. & S. P. R. Co. v. Thatcher, 11 N. Y. 102 ; Buffalo, &c. R. R. Co. v. Dudley, 14 N. Y. 336, 348, 349, 355 ; and Union Hotel Co. v. Hersee, 79 N. Y. 454, 458I