2. The case of the Ill. River R. R. Co. v. Zimmer, 20th Ill., 654, was an action of assumpsit, brought against the defendant upon a subscription to the capital stock of the company.

The defence was that, although the defendant had made a general and unqualified subscription to the capital stock of the company, yet that the company had since that time procured certain amendments to be made, one of which allowed the subscriptions to be applied in counties where subscribed, and in that way the road might never be built through, but would be built in sections; and another was, that the amendment required subscriptions to be paid on a notice of twenty days instead of ninety days. Several other minor matters were set out as being irregularities, and the defendant upon those grounds claimed that he ought to be released from his contract.

The court, Judge CATON, in deciding the case said that, "when this subscription was made, the defendant knew that the charter was not unalterable. He knew that it might be amended by the legislature, and that the company might accept such amendment, when that would become the law of the company. If the ninety days' notice were deemed essential and designed to be made a condition precedent to a legal liability to pay the money, it should have been inserted in express terms in the agreement of subscription, when the condition precedent would have to be performed before the liability would become complete.

There is in this case, the same implied reservation of the right to change the law, and thus vary the precise extent of the liability, that there is in case of official bonds, given by public officers and their sureties, conditioned that they shall faithfully perform the duties of their office according to law. In that case, it is well settled that new or additional duties may be imposed upon the officer, so as they are germain to the office, and the sureties are bound for his faithful performance of those new duties, although the extent

of their liability is thereby increased beyond what it was when they executed the bond; and this, too, notwithstanding the great strictness which is usually observed in favor of sureties.

Governor v. Ridgeway, 12 Ill., 14.

Bartlett v. the Gov., 2 Bibb., 586."

The court then proceeds to dispose of the case, by saying that, "this is not one of those cases where the provisions of the law are by implication incorporated into the contract and constitute a part of it, unless we also introduce into the contract by implication that other principle of law, by which the right to the legislature and the company is reserved to change the provisions of the charter, as the public good and the interests of the company at large may require."

Now, the theory which Judge CATON here lays down is utterly at variance with all ideas of vested rights; and he seems to regard railroads as public corporatious, and subject to have their charters changed and modified precisely as municipal corporations. He may be correct, and that may be entirely the best policy, but this view is not adopted by any other court in the United States, and is not the view which has been taken of the subject by Judges BREESE and WALKER, or the Supreme Court of Illinois, as at present constituted, at all.

Judge CATON seems to attach no sort of importance to the rights of an individual stockholder, and places the railroad absolutely under the control of the majority of the stock. He does not stop to consider whether the majority of opinions, or wills, is the correct rule, but he sets up an oligarchy of money, and then says, every shareholder must look for the promotion of his individual interest, to the advancement of every other shareholder; and drops out of sight, every idea of a contract, which may, by such a course, be impaired, and treads over all constitutional questions, as if they were a worn out pathway.

"Whatever advances that general interest," says he, "must necessarily be held to be a promotion of his interest. Each shareholder has a right to expect the cordial co-operation of all his coshareholders in everything which tends to promote that general good. No one should be permitted to turn traitor to the cause, and set up an individual interest as hostile to it. No one can be known in the concern except by the stock which he represents, and all must be presumed to have a single eye to the enhancement of the value of that stock. These are general considerations which must be ever borne in mind in considering of amendments to charters of incorporations.

"If an amendment is promotive of the general interest of the company, it is not necessarily promotive to the individual interest of each shareholder to the extent of his shares in the company; and any company has an undoubted right to accept any amendment to its charter, which it believes promotive of the objects and interests of the company. Of this, the company is necessarily the judge, and those who represent and act for the company, so long as they act with an honest purpose and bona fide intent, must be held to have acted for the best; or, at least, their action must be sustained, as obligatory upon the company, the same as in the exercise of any other discretionary power with which they are vested, although it may turn out that they may have erred in their judgment. They are no more likely to err in this than in the exercise of any other important power with which they are invested."

Here, it will be observed, he takes the ground, that "each shareholder has a right to expect the cordial co-operation of all his co-shareholders in everything which tends to promote that general good."

And recognizes the rights of an individual in the broadest manner, but in the very next sentence, he says, that, "no one should be permitted to turn traitor to the concern, and set up an individual interest as hostile to it." Now, suppose that all the

stockholders, but one, turned traitors, to the concern at once-suppose that they resolved to rebel and overturn the entire corporation-sell it out, and blot it out altogether-and suppose one man stood by the old corporation, and demanded to have it preserved, and insisted that it should not be destroyed, either by "foreign foes or domestic traitors,"-who, then, in such a case, would be the traitor? Would it be the man who struck for the corporation, or those who sought to destroy it?

This doctrine, if taken as laid down, cannot be sustained. It proves altogether too much; and would, if carried out, justify any act of revolution or rebellion against the fundamental law. Knowing the soundness of Judge CATON's views generally, we do not believe that he meant to lay down and establish any such rule whatever. He undoubtedly meant that, within the scope of their authority, and to carry out any enterprise which the stockholders had a right to accomplish, the majority of stockholders might rule; but he never meant to say that the majority could do anything and everything they pleased, even to the destruction of the corporation itself. And in proof of this, we refer to his remarks near the close of the opinion, on page 663, where he says, in speaking of amendments to the charter, that, "If the act of acceptance by the board of directors, or other controlling power, is prompted by sinister motives, and not with a single eye to the general good of the company, it becomes fraudulent, and for that reason, void, and might, as such, be repudiated by the corporators or shareholders."

The cases of Alton and Sangamon Railroad Company v. Barret, 14 Ill. 504; Sprague v. Illinois River Railroad Co., 19 Ill. 174; Price v. Rock Island & Alton R. R. Co., 21 Ill. 93; and Terre Haute & Alton R. R. Co. v. Earp, 21 Ill. 293-all decided by Judge CATON, establish the doctrine that the charters, which were amended, and which were brought in question, were not such fundamental changes as to release the subscribers, although Judge BREESE dissented in the case of Sprague, and Judge WALKER de

livered a long and able dissenting opinion in the case of the Terre Haute & Alton R. R. Co. v. Earp; and we respectfully submit, that the opinions of Judge BREESE and Judge WALKER are far more in consonance with the opinions of the courts of most other States in the Union than Judge CATON's. Indeed, it will be seen by comparison, that Judge CATON's theory leaves out of sight all rights of individual stockholders, and all ideas of vested rights.

3. The views of Judge BREESE are entirely different from those of Judge CATON-and he held, in the case of Supervisors of Fulton County v. Miss. & Wabash R. R. Co., 21 Ill. 510, that where a continuous line of railroad was by an amendment to the original ́charter, divided up into divisions, and placed under commissioners, who should manage and control it, was such a fundamental change in the charter as to work a dissolution of the original contract between the corporation and the subscriber. He further said that, "the presumption always is, that such investments are made with a view to the profits to be derived from the stock subscribed as an investment. The expected dividends are to be considered as the moving cause of subscription to the stock."

He then discusses the effects of thus dividing up a continuous line of railroad, and says: "we cannot but think, in this view, that the alteration of the original charter, by dividing this great road, was fundamental, and the stockholders released from their subscriptions."

But it is argued, said the court, that the company has accepted the alteration, and such acceptance is binding on the subscribers. If this is so, the stockholders would not be liable.

In the cases referred to, Barnet v. The Alton & Sangamon Rail road Company, 13 Ill. 504; Sprague v. Illinois River Railroad Company, 19 Ill. 174; and Illinois River Railroad Company v. Zimmerman, 20 Ill. 654-it is nowhere intimated that fundamental changes by the legislature shall not release subscribers to stock,