put a wrong interpretation upon the act, and have failed to comply with its provisions. On the other hand, if they have rightly interpreted the act, then the act itself is unconstitutional and void, for the want of adequate provisions to secure the individual liability of stockholders becoming incorporated under its provisions. I presume it is not claimed, on behalf of defendants, that they have done any act by way of organization-the taking of stock, or the acceptance of the deed made under the Act of 1863which subjects them, as individuals, to any liability, whatever, beyond that incurred by becoming members of the foreign company. They never organized under the Ohio act. Their organization was complete before it was passed. They took no stock under the Ohio act; their stock had already been taken under the Pennsylvania act; nor was the deed made to or accepted by them; it was made to and accepted by the corporation of which they were members. As such corporation it had no power, by any act, whatever, to pledge the individual liability of its stockholders. The powers of a corporation are limited to the common property and common interests of the organization. Over these, and within the scope and purpose of its organization, a majority of its members, acting through and by its officers and agents, can exercise dominion and control and bind its individual members.

Beyond this common fund, and outside this scope, the corpo ration, as such, is powerless to bind its individual members. In some cases, it has been found very difficult to determine the exact line between what may be done by a majority of the corpor ators, thus acting by and through common agents, and what can only be effected by the individual consent of each and all; but no difficulty of the kind can occur in solving questions of individual liability. There, the line is strictly drawn and marked— the contract by which he becomes a member fixes the boundary between the interests of the stockholder and those which are em barked in the common enterprise, and thus subjected to the common control; and this contract, be it expressed or implied, must be interpreted in the light of the law as it existed at the time, and under which this organization is had. The private interests and rights of the stockholder, not by this contract, or some subsequent individual act of his, placed in the common fund, or subjected to the corporate control, are as completely outside the reach and power of the corporation as are the property and rights of strangers. The element of individual liability must be en

grafted upon the stock by the law under which the organization is had, or the stock is taken, and by virtue of that organization or taking, or else by some subsequent individual assent of the stockholder; otherwise he stands liable for no more than the amount which, by his contract with the Company, he has agreed to contribute to the common fund.

In this view of the case, it plainly follows, that the defendants have not become members of an Ohio corporation, created under the present Constitution of the State, for the reason that they have never subjected themselves to the individual liability which it imposes on stockholders, and which it makes an indispensable element in the creation of all such corporations. Either the defendants have misinterpreted the Act of 1863, and wholly failed to conform to its provisions, or, if they have rightly interpreted it, as authorizing bestowment of a charter upon a foreign corporation without securing any individual liability of its stockholders, then the act itself is unconstitutional and void. In either alternative, the defendants are no legal corporation of Ohio. It is unnecessary, therefore, to inquire whether their charter as a corporation of Pennsylvania gives them authority, as such corporation, to accept an additional charter from another State, or whether, if they have such authority, it is competent for another State, not having a Constitution like ours, thus to grant them a second charter; that is, to make the grant directly to the corporation eo nomine, and not to the individuals composing it. If we concede both the authority to accept a second and foreign charter, and the general power of another State, in this manner, to make the grant, it is enough, for the present case, to say, that the power in question has been denied to the legislature of Ohio by her present Constitution.

II. The second general question involved, is, whether the defendants, as a foreign corporation, have the right, by the present laws of Ohio, to enjoy, exercise, and use the franchises and privileges specified in the information, other than that of being an Ohio corporation. That is to say-has the Pittsburgh, Fort Wayne and Chicago Railway Company, under the present laws of Ohio, accorded to it the right, to own, operate and maintain its road in and through the State, including the right to condemn and appropriate private property to its own use the right of being a common carrier for reward, and the right to lease its road, under the act of March 19th, 1869? We answer this question in the af

firmative, and we need perhaps add but little more. In American Bible Society v. Marshall, 15 O. S. R., 541, this Court held that a foreign corporation might purchase and own real estate in Ohio, when not forbidden by express legislation, or the general policy of the law. The ownership of such property implies its use by the owner, and the nature of the use is to be determined by the nature of the property itself.

There is not only no law of Ohio prohibiting the ownership and use of railroads in the State, by foreign corporations, and no public policy of the State to be contravened thereby, but there is abundant legislation directly to the contrary. The legislation brought into review by the agreed statement in this case, abundantly shows, that the policy of the State has been, and is, not only to permit, but to invite and encourage such ownership and use, and to place foreign companies, in this respect, on a perfectly equal footing with domestic companies. It would be strange were it otherwise. To invite their co-operation in works of great public concern, and then discriminate against them, in point of right to use and enjoy their property in the State, would not only be unjust to them, but unwise for the State. If any discrimination does exist, it is in regard to the power of condemning and appropriating private property to the use of the roads. In this case, we find what we construe to be an express grant of that power. The Pennsylvania act incorporating the defendants gives them power to condemn and appropriate private property. By the 7th Section of an act of April 11th, 1861, it is provided, that "a corporation of another State possessing part of a railroad which is partly in such other State, and partly within this State, may exercise and enjoy within this State all its powers, privileges, facilities and franchises, for the purpose of said railroad and its business, not inconsistent with the laws of this State and the provisions of said act." This provision clearly gives the right to condemn and appropriate private property in Ohio, to all railroad corporations of other States, which have the power of condemnation and appropriation given them in their charters of incorporation.

It follows, that a judgment of ouster will be entered against the defendants, as to the franchise of being a corporation of Ohio, and a judgment in their favor, as to the other franchises and privileges which they are charged with usurping.

Judgment accordingly.

Judge WEST, having been of counsel, did not sit in the case.

OPINION

OF

HON. R. P. RANNEY AND S. J. TILDEN.

ON

TAXATION OF OHIO STOCKHOLDERS.

Hon. G. W. CASS,

President P. F. W. & C. Ry. Co., New York:

DEAR SIR: We have examined with much care the question submitted to us, relative to the liability of the Stockholders of your Company, residing in Ohio, to taxation upon their shares of stock, in addition to the taxes levied upon the property of the Company, situated in that State. This question is supposed to arise upon a late decision of the Supreme Court of that State, in which it was held, that the Company was not a corporation of that State, but held and operated its property there in virtue of its corporate organization in other States; thus, as is claimed, making such owners of stock, stockholders in a foreign corporation. If we had not been informed to the contrary, we should never have anticipated that such a claim would be advanced, nor do we think that it will be persisted in. But, be this as it may, we have no hesitation in declaring such an absurd and unjust claim totally destitute of any legal foundation in the Constitution and laws of that State. By the Constitution it is provided that, "laws shall be passed, taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money ;" and that "the property of corporations now existing or hereafter enacted shall forever be subject to taxation, the same as the property of individuals."

These provisions require, 1st, the taxation of all property, whether belonging to individuals or corporations, at its true value in money; 2d, the same rate per cent. to be levied upon that value; and 3d, prohibit the burdening of one description of property more than another, either by valuing it at more than it is!

worth, taxing it twice, or levying more than the uniform rate per cent. upon it.

The tax laws of the State were generally revised in 1859. As a general proposition, the owner of any property was required to return it upon oath to the assessor of his township or wards, in order that it might be returned upon the county duplicate for taxation. This was true of investments in the stock of associations and corporations, except when special provision was made in the act for their taxation. By the 3d section (S. & C., Stat1440), it is provided that "no person shall be required to include "in his statement of the personal property, etc., etc.," any share or portion of the capital stock or property of any company or corporation, which is required to list or return its capital and property for taxation in this State." The 16th section of the same act provided for the taxation of railroad and other companies, and requires the President, Secretary, or principal accounting officer of each of them, "whether incorporated by any "law of this State or not," to return to the respective county Auditors in the counties where their property was situated, "all the personal property, which shall be held to include road-bed, "water and road stations, and such other realty as is necessary "to the daily running operations of the road, money and credits "of such company or corporations, within the State, at the actual value in money." And again, in section 59, it is provided that "no person shall be required to list for taxation any certificate of "the capital stock of any company, the capital stock of which is “taxed in the name of said company.'

By a supplementary act, passed May 1, 1862, the 16th section of the act of 1859, above referred to, was so far changed and repealed as to constitute the "County Auditors of the several counties in this State, in which any railroad company now has "or hereafter may have its track and railway, or any part "thereof," * * * * "a board of appraisers and assessors "for such railroad company."

S. & S. Stat., 766, after providing for the proper organization of this board (prescribing their powers and duties in enforcing the attendance and examination of the officers of the corporation), and the apportionment of the assessinent amongst the counties, towns and cities through which the road runs; the very case of a road partly within and partly out of the State is provided for in the 8th section. It is then enacted that "When any railroad