Agricultural Branch Railroad v. Winchester

Chapman, J. 1. The defendant contends that this action cannot be maintained, because the terms of his subscription to .the stock of the company are uncertain and indefinite. It appears that the company was authorized by its charter to build the road in three sections, with a separate and distinct capital stock for each section. The first section having been completed, subscription papers were prepared for the two remaining sections together, and the defendant subscribed one of these, stating in writing, against his name, that it was for the second and third sections. The alleged uncertainty is stated to consist in this : “ that it does not appear whether the whole of the defendant’s subscription was to be expended upon one of the sections named, or, if it was divided, how much was to be applied to each section.” The obvious answer to this position is, that it was not illegal to build the two sections together, and therefore the uncertainty relates to an immaterial matter. The question as to the proportions in which it shall be applied to each section when cdnected does not arise in this case. 2. It, is objected that twenty per cent, had not been paid it [32] upon each share subscribed for, according to the requirement of St. 1852, c. 178, § 6, before the construction of the two sections was commenced. But the defendant paid nothing on his subscription ; his shares were sold to pay the assessments upon them, and this action is brought to recover the balance'of the assessments. If the fact that twenty per cent, had not been paid in on each and every share would leave the company without authority to commence their work, still it would be no objection to the collection of assessments ; and the commencement of the work cannot invalidate the subscriptions, or defeat this action to recover assessments upon the shares. 3. It is contended that the cotnpany has exceeded its authority by issuing stock to the amount of $170,000. It appears that by St. 1852, c. 178, § 5, the company was authorized to increase its capital stock for the purpose of the extension of the road by the sum of $300,000. By § 6, $200,000 was to be the capital of the second section, and $100,000 the capital of the third section. By St. 1860, c. 42, the capital required to build the second section was to be $100,000, and the capital required to build the third section $50,000. This latter act is to be regarded as an enabling statute, and not a restrictive one. It did not revoke the authority to make the capital stock $300,000, if necessary. The stock subscribed is less than that sum. 4. It is objected that interest was allowed to subscribers on their payments before the road was completed. The answer to this objection is, that the subscription paper, signed by the defendant, recommends that this payment be made. His assent estops him from making the objection. 5. It is objected that the company has obtained legislative amendments to their charter, extending the time originally prescribed for the completion of their road, and has extended the time under these acts. The objection is made in argument, but does not appear ip the agreed statement of facts. Formerly when charters were granted, it was not customary for the legisature to reserve power to alter or modify them. The case of Middlesex Turnpike Corp. v. Swan, 10 Mass. 384, arose under such a charter. It was held that the defendant had subscribed [33] to an object specifically ascertained, and, the terms of his contract being definite, an alteration of the route of the road was an alteration of his contract, and, therefore, it could not be enforced. But all our acts of incorporation, granted since March 1831, have been subject to amendment, alteration or repeal at the pleasure of the legislature. Gen. Sts. c. 68, § 41. It was held in South Bay Meadow Dam Co. v. Gray, 30 Maine, 547, that subscribers to the stock of corporations, subject to be thus changed, should be regarded as consenting to the change. This doctrine has been in many cases applied to changes and extensions in the route of a railroad, plank-road or canal. Schenectady, &c. Railroad v. Thatcher, 1 Kernan, 102. Buffalo, &c. Railroad v. Dudley, 14 N. Y. 336. Banet v. Alton, &c. Railroad, 13 Illinois, 504. Pennsylvania & Ohio Canal Co. v. Webb, 9 Ohio, 136. Gray v. Monongahela Navigation Co. 2 Watts & S. 156. There are many other authorities to this point. Nothing is more common than alterations of railroad charters extending the time for completing the road, and such extensions do not fundamentally or very essentially change the character of the charter. We think it reasonable to hold that subscribers to +he stock impliedly consent to them. Judgment for ih plaintiffs.