Page:Harvard Law Review Volume 8.djvu/426

410 410 HARVARD LAW REVIEW, The eleventh section of the charter of the Northern Railroad is, " The Legislature may alter, amend, or modify the provisions of this Act, or repeal the same, notice being given to the corporation, and an opportunity to be heard." If the decision in this case de- pended on the question of fact whether the company had notice and an opportunity to be heard on the proposed passage of the Act of 1883 (ch. 100), the defendants could be allowed, in some proceeding, to show why that question was not tried at the trial term, and the reasons, if any there are, for a new trial of the case on that point. The view most favorable to the lease is that the requirement of notice and an opportunity to be heard was com- plied with, or was void. The case is decided without any consid- eration of the effect of the requirement, upon the assumption that it was complied with, and that, for the practical purposes of this case, the performance of the condition gave § r i the force of an unconditional reservation of the power of alteration and repeal. " The reservation affects the entire relation between the State and the corporation, and places under legislative control all rights, privileges, and immunities derived by its charter directly from the State." ^ " It was a reservation to the State. . . . The State was making what had been decided to be a contract, and it reserved the power of change, by altering, modifying, or repealing the con- tract. ... It was to avoid the rule in the Dartmouth College Case, not that in Natusch v. Irving, that the " reservation " was made." ^ In Stewart v. Little Miami R. Co.,^ one of the grounds on which a provisional injunction against a change of railway location between unaltered termini was refused was, that " the original charter con- ferred authority to make the alteration complained of." Another ground was, that the plaintiffs by the suit sought protection for their interest as stockholders; that " their interest as landholders upon the route " was their main interest; that were it not for their landholding interest, the injury to their stock would not be a cause of complaint; and that the construction of " a great and important public work " should be suspended by injunction only " to prevent injuries that would otherwise be irreparable, or when the magni- tude of the injury to be dreaded is so great, and the risk so immi- nent, that no prudent person would think of incurring it. Then 1 Tomlinson v. Jessup, 15 Wall. 454, 459. 2 Zabriskie v. Hackensack & New York R. R. Co., 18 N. J. Eq. 178, 185, 186. 8 14 Ohio, 353.