Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/568

 § 536. J THE LAW OF PRIVATE CORPORATIONS. [CHAP. IX. created and has its existence by virtue of a contract with the legislature, which may be amended or changed with the con- sent of the company, ascertained or declared in the mode pointed out by law. . . . All that we mean to determine is that the obligation of the contract which subsists between the corporation and a stockholder, by virtue of his being a pro- prietor of shares in the corporate stock, is not impaired by an act of the legislature which amends and alters the charter, and authorizes the corporation to undertake new and additional enterprises of a nature similar to those embraced within the original grant of power, if such act is accepted by a majority of the stockholders in the mode provided by law." * § 535. A somewhat different view was taken in the New Jersey case of Zabriskie v. Hackensack, etc., R. R. Co., 2 where Chancellor Zabriskie said : 3 " There is no other alternative to the proposition that while the power reserved authorizes the legislature, within certain limits, to make such alterations as they choose to impose, it gives no authority when the legis- lature does not impose them, for the majority to adopt such alterations or enter upon such enterprises as are allowed by the legislature. Again the power of the legislature has its limits. It can repeal or suspend the charter ; it can alter or modify it ; it can take away the charter ; but it cannot impose a new one, and oblige the stockholders to accept it. It can alter or mod- ify the old one ; but the power to alter or modify anything can never be held to imply a power to substitute a thing entirely different. It is not the meaning of the words in their usually received sense." Nevertheless, it is hard to see why the power to alter and amend, the power to impose new terms, does not include the power to make the alteration subject to the will of a majority of the shareholders. What the legislature could do without the assent of this majority it surely could do with it, and in this respect Durfee v. Old Colony, etc., R. R. Co. is more satis- factory than Zabriskie v. Hackensack, etc., R. R. Co. 4 § 536. Without special authority a corporation cannot con- Durfee v. Old Colony, etc., R. R. Co., 5 Allen, 230, 243 et xeq. See Atchison, T. and S. F. R. R. Co. v. Fletcher, 35 Kans. 236. 548 2 18N. J. Eq. 178. 3 lb. 192. 299.
 * See, also, Bish». Johnson, 21 Ind.