Page:The Green Bag (1889–1914), Volume 17.pdf/378

 THE EQUITABLE SITUATION or property without due process of law." The second of these provisions is duplicated in the New York State Constitution.1 Since the decision in Dartmouth College v. Woodward established the rule that a corporate charter constituted a contract whose obligation was forbidden to be im paired by the state, it has been customary in granting charters to corporations, and in enacting general acts authorizing the forma tion of companies, for the state to reserve to itself power to amend or repeal all acts of incorporation at pleasure. The state of New York had reserved such power to itself at the time of the organization of the Equitable Society.2 The various courts which have had this reserved power of the state to amend or repeal corporate charters under considera tion, have not agreed in the views which they have taken of the extent of the power possessed by the state under such reserva tions to change the corporate organization or enterprise against the will of the com pany or of minority stock-holders. In New Jersey, and in some other juris dictions, it has been held that while the state under such reserved power has the right at will to put an end to the corporate existence, it cannot as against the dissent of a single stock-holder so amend the charter as to make a new contract for him without his consent.8 The courts of New York, and of the United States, however, do not lay down so strict a rule, and while the decisions are by no means harmonious or perfectly clear, the effect of them appears to be that under the reservation the state may impose upon the corporation, even against its will, or against the will of some of its members, any charter amendments which it pleases; provided, however, that thereby the second 1 Article i §6. 2 New York Constitution of 1846, Article 8, §i; New York Revised Statutes, Part I, Chapter 18. Title 3. §8. ' Zabriskie v. Hackensack R.R. Co. 18 N. J. Eq. 178.

357

constitutional guaranty cited above is not violated, i.e., that thereby no person is arbitrarily deprived of his property without his consent. The reserved power to amend or repeal charters does not relieve the state from the latter prohibition.1 In the present case the amendment to the charter of the Equitable Society is proposed to be made, not by the legislature of the state, but by the board of directors acting under a power claimed to be given to it by the legislature in general terms by the In surance Law of the state.2 In other words, the legislature has agreed in advance, within certain limits, to accept and ratify any change in the organization of the corpora tion which the corporation itself may make, so far, at least, as the rights of the state itself is concerned. But so far as concerns the rights of individual stock-holders, it is evident that the state cannot confer upon the corporation any greater power to amend its charter than the legislature itself would possess. The question then arises, assum ing the amendment to have been validly made, so far as the state and the corpora tion are concerned, whether it deprives the stock-holders of their property. If this be the case the amendment is evidently in valid if any stock-holder promptly and ac tively dissent — as has been done in this case through the injunction suit instituted by minority stock-holders. The amendment takes from the stock holders the right to vote for a majority of the directors of the corporation, and con fers this right upon the policy-holders. The question then is whether the right to vote for a majority of the directors of the cor poration constitutes a property right. If it does, the amendment deprives the stock holders of the Society of their property. It is well settled, that to deprive the 1 People v. O'Brien, in N. Y., i, 47: Roches ter Turnpike v. Joel, 41 App. Div., 43; Shields v. Ohio. 05 U. S. 319; Close v. Glemvood Cemetery, 107 U. S. 466. 2 New York Insurance Law, §52.