It is further contended by the companies that they had the right, under §8 of the charter of the Ripley Railroad Company, to change the location of its line through the town of Pontotoc, and that the charter constitutes a contract which is impaired, it is further urged, by the laws creating the Railroad Commission, as interpreted by the Supreme Court of the State. Section 8 of the charter provides that for the purpose of making the railroad provided for in § 2, "or repairing or changing it afterwards," the railroad shall have rights of entering upon adjoining land, etc., upon making compensation to the owners. What power this section confers may be open to dispute. It may be said that the right of " this repairing or changing" the railroad does not give the power to abandon it. However, the Supreme Court did not pass upon the meaning of § 8. The court said if that section gave the companies the power to change the line of the narrow gauge road as they desired, they waived it, and are estopped to revoke it by their obtaining the consent of the State through its Railroad Com`mission to broaden and standardize that line through its entire length. This was a question for the Supreme Court to decide. It was fairly presented to the court. We cannot question the motives of its judgment; indeed we cannot say that we dissent from it. At any rate, it is not reviewable. Eustis v. Bolles, 150 U. S. 361; Weyerhauser v. Minnesota, 176 U. S. 550; Hale v. Lewis, 181 U. S. 473; Schæfer v. Werling, 188 U. S. 516.

The final contention of plaintiff in error is based on the act of the legislature of the State, called the "Stegall Bill." This act was passed after the decree of the Chancery Court, and it is contended that it is an express legislative enactment which approved the location by the Gulf and Chicago Railway Company, as consolidated, of its railway through the town of Pontotoc, and authorized a continuance of the same on condition that it should broaden and standardize the track into the old town and to the site of the old station. These conditions, it is asserted, were performed, and a contract was hence entered into between the State and the railroad company, and that the

decision of the Supreme Court, "denying the obligation of this contract, is either, (a) a law impairing the obligation of a contract; or (b) a denial to the plaintiff in error of the equal protection of the laws; or (c) the taking of their property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States."

The Supreme Court decided that the bill was unconstitutional, saying: "So far as the Stegall Bill is concerned, it is perfectly obvious, as already held in the former opinion, that this special act, which was in substance for the benefit of this particular corporation, was, under the general statute laws, which we have referred to with respect to consolidation, palpably and manifestly violative of 87 of the constitution, and plainly null and void." This conclusion is attacked, and our construction is. invoked of the constitutional provision against that made by the Supreme Court of the State.

We are unable to yield to the appeal. It is only when the judgment of a state court gives effect to a law subsequent to that (or it may be a constitution), which it is alleged constitutes a contract, that we may review the judgment and decide the question of contract. And this would involve the construction of the law. But the record presents no such case. The "Stegall Bill," it is true, is claimed to be a contract, but its validity is not asserted against a subsequent law. It is asserted against prior laws and the Constitution. The decision of the court, therefore, was of that kind that a court is often called to make under the laws and constitution of its State. To assert error in the decision or even to be able to demonstrate it does not invest us with the power of review. Nor do the other supposed consequences of the decision of the Supreme Court give us jurisdiction to review it. That it denies the companies the equal protection of the law, we may say, is without any foundation. No discrimination against them is pointed out, and to say that the decision takes their property without due process of law is only another way of saying that they had a contract, the obligation of which is impaired. Of course,

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they assert rights under the "Stegall Bill," but in that they present a very common case within the exclusive jurisdiction. of the state court.

Judgment affirmed.

OLD DOMINION COPPER MINING AND SMELTING COMPANY v. LEWISOHN.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 206. Argued April 16, 20, 1908.-Decided May 18, 1908.

A corporation remains unchanged and unaffected in its identity by changes in its members, nor does it change its identity by increasing its capital stock; and its legal action is equally binding on itself after such an increase as it was prior thereto.

A corporation should not be allowed to disregard its assent previously given in order to charge a single member with the whole results of a transaction to which the greater part-in this case thirteen-fifteenths-of its stock were parties for the benefit of the guilty and innocent alike. 148 Fed. Rep. 1020, affirmed.

THE facts are stated in the opinion.

Mr. Louis D. Brandeis and Mr. Edward F. McClennen, with whom Mr. William H. Dunbar was on the brief, for petitioner: The sale was made by promoters to a corporation organized for the purpose and exclusively controlled and represented by them.

A corporation is entitled to relief against a sale made to it by promoters who themselves control the corporation unless all persons entitled to object acquiesce.

The rule is universal that if a vendor stands in a fiduciary relation to his vendee the sale is voidable, unless independently acquiesced in by the latter with full knowledge of all material

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Argument for Petitioner.

facts. Wardell v. Railroad Co., 103 U. S. 651, 658; Thomas v. Peoria & R. I. R. Co., 36 Fed. Rep. 808; Tyrrell v. Bank of London, 10 H. L. C. 26; Aberdeen Railway Co. v. Blaikie, 1 McQueen, 461.

A promoter stands in a fiduciary relation to the corporation he promotes, and is subject to this rule. Dickerman v. Northern Trust Co., 176 U. S. 181; Teiser v. U. S. Board & Paper Co., 107 Fed. Rep. 340; Hayward v. Leeson, 176 Massachusetts, 310; Old Dominion Copper Co. v. Bigelow, 188 Massachusetts, 315; Central Trust Co. v. East Tenn. Land Co., 116 Fed. Rep. 743; Yale Gas Stove Co. v. Wilcox, 64 Connecticut, 101; Chandler v. Bacon, 30 Fed. Rep. 538; Burbank v. Dennis, 101 California, 90; The Telegraph v. Loetscher, 127 Iowa, 383; Hinckley v. Sac Oil & Pipe Line Co., 132 Iowa, 396; Camden Land Co. v. Lewis, 101 Maine, 78; Fred Macey Co. v. Macey, 143 Michigan, 138; South Joplin Land Co. v. Case, 104 Missouri, 572; Exter v. Sawyer, 146 Missouri, 302; Woodbury Heights Land Co. v. Loudenslager, 55 N. J. Eq. 78; S. C., 56 N. J. Eq. 411; S. C., 58 N. J. Eq. 556; First Avenue Land Co. v. Hildebrand, 103 Wisconsin, 530; Hebgen v. Koeffler, 97 Wisconsin, 313; Hitchcock v. Hustace, 14 Hawaii, 232; Erlanger v. New Sombrero Co., 3 App. Cas. 1218; Gluckstein v. Barnes, A. C. 240.

The liability of the promoter exists independently of any misrepresentation, of the issue of a prospectus, or of the particular method in which the transaction is carried out. Gilman C. & S. R. R. Co. v. Kelly, 77 Illinois, 426, 435; Dutton v. Willner, 52 N. Y. 312; Hayward v. Leeson, 176 Massachusetts, 310; Salomon v. Salomon, A. C. 22; Tompkins v. Sperry, 96 Maryland, 560.

The duty of the promoters extends to all persons whom they bring in as original subscribers for stock, whether before or after the transaction complained of. Morawetz on Private Corporations (2d ed.), § 294; Dickerman v. Northern Trust Co., 176 U. S. 181; Geiser v. U. S. Board & Paper Co., 107 Fed. Rep. 340, 348; Chandler v. Bacon, 30 Fed. Rep. 538; Hayward v. Leeson, 176 Massachusetts, 310, 320; South Joplin Land Co. v.

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Case, 104 Missouri, 572, 579; In re Leeds & Hanley Theatres, 2 Ch. 809.

The subscribers for the twenty thousand shares issued for cash were persons interested, who did not acquiesce. Dickerman v. Northern Trust Co., 176 U. S. 181.

The members of the Old Dominion Syndicate were persons interested, who did not acquiesce. Arnold v. Searing, 67 Atl. Rep. 831, 832; Brewster v. Hatch, 122 N. Y. 349.

There was clearly no disclosure and therefore no acquiescence if persons other than the promoters themselves were concerned. Gluckstein v. Barnes, A. C. 240, 249.

Mr. Eugene Treadwell, with whom Mr. Edward Lauterbach was on the brief, for respondents:

The company is without equity in the premises. There was no fraud on the company. Since at the date of the transaction sought to be rescinded, Bigelow and Lewisohn owned all the stock of the complainant, constituted the entire stockholding interest of the company and received all of the stock of the company issued, including the stock issued by the complainant for the property in question, there was no one who could in equity complain. Foster v. Seymour, 23 Fed. Rep. 65; McCracken v. Robison, 57 Fed. Rep. 375; Stewart v. St. Louis &c. R. Co., 41 Fed. Rep. 736, 738; Dupont v. Tilden, 42 Fed. Rep. 87; Wood v. Corry Water Works, 44 Fed. Rep. 146, 149; Fort Madison Bank v. Alden, 129 U. S. 373, 378; Barr v. N. Y., L. E. & W. R. R. Co., 125 N. Y. 263, 273; Seymour v. Spring Forest Assn., 144 N. Y. 333; Thornton v. Wabash Ry. Co., 81 N. Y. 462, 467; Parsons v. Hayes, 14 Abb. N. C. 419, 434; King v. Barnes, 109 N. Y. 267; Insurance Press v. Montauk Wire Co., 103 App. Div. (N. Y.) 472; Blum v. Whitney, 185 N. Y. 232; Higgins v. Lansingh, 154 Illinois, 301, 331, 336; Spaulding and Another v. North Milwaukee Town Site Co., 106 Wisconsin, 481, 488; In re Ambrose, L. R. 14 Ch. D. 390, 395, 399; In re British Seamless Paper Co., L. R. 17 Ch. D. 467; Salomon v. Salomon, L. R. (1897) A. C. 22; Cook on Corpora