"and" and " or" in a statute are convertible as the sense may require. While the said act was intended as a revision of existing laws the laws so revised were amended and it was the legislative intent in adopting so much of the revision as relates to gas and electric companies, not to curtail the powers and purposes of such corporations, but to permit them to amend their certificates in such a way as to authorize them to enlarge their purposes and objects and to exercise powers beyond the limits within which they were before restricted. Therefore, a gas company organized under the New York Laws of 1848,67 and which under the Acts of 1879 68 and 1882,69 was authorized to use electricity for heating purposes, was entitled to amend its certificate so as to enable it to manufacture and use electricity for producing light, heat and power, under e provisions of the "Stock Corporation Law." 70 One of the additional powers sought to be acquired by amending the certificate in the above case, was to exchange the corporation stock for that of an electric light company, but it was held that while this was in effect the merging of the business and franchises of the two corporations, it might be done by an amendment to the certificate and the corporation was not compelled to resort to the provisions of the general law, providing for consolidation.72 Where a street railway corporation fails to obtain the proper consents of abutting owners, a new grant of a portion of a street railway may be made, when such consents are obtained. But such new grant is not a new enterprise requiring bids upon rates of fare and like matters. A general law of Missouri, authorizing corporations to extend their business to any other purpose authorized therein, em 67 Chap. 37, Laws of N. Y., 1848. 68 Chap. 512, Laws of N. Y., 1879. 69 Chap. 73, Laws of 1882. 70 Of 1892, § 32, chap. 688; Wells on Railroad Corp. in N. Y. (ed. 1899, p. 74); given also in Hamilton on Railroad Laws of N. Y. (ed. 1899), under "Stock Corporation Law," p. 40, authorizing any stock corporation theretofore organized to amend its certificate and extend or alter its business and powers so as to include any purpose or powers 71 which, at the time of such extension, might properly be included in the certificate for the formation of a corporation of the same general character under any general law. 71 Subd. 3, § 61, c. 566, Laws of 1890; 8, chap. 691, Laws of 1892. 72 People, Municipal Gas Co. of Albany v. Rice, 138 N. Y. 151, 51 N. Y. St. R. 853, 4 Am. Elec. Cas. 859, 33 N. E. 846. 73 San Fleet v. Toledo, 10 Ohio C. C. 460. powers a street railway corporation which has accepted its provisions, and which is organized under a special charter prior to the Constitution of that State, of 1865, to amend its charter so as to enable it to extend the termini of its line as originally fixed and to lease or acquire rights granted to other roads. 74 It is sufficient that there is an actual practical acceptance of the extension of a street railway franchise or some action which is inconsistent with any other theory than that of acceptance no formal resolution therefor is necessary. It may be presumed from the fact that an amended ordinance extending such franchise is beneficial to the corporation, and that bonds are issued, falling due at the expiration of the extended franchise, or by the fact that the manager of said railway has consented to an ordinance modifying the provision which he sought to have made by an amendment to the ordinance, granting said franchise. Again, where bondholders have in good faith invested their money, relying upon the validity of the ordinance, the city is estopped to assert against them a want of consideration for the grant of the extension of said franchise.75 A statute which empowers incorporated companies to maintain and operate street railroads does not extend a grant of a right, limited in duration, to use city streets for a street railway.' 76 § 205a. Effect of certificate of extension Forfeiture.- A certificate of extension filed by a street surface railroad company is in effect an amendment of its original articles of incorporation to the extent of its addition to the route and the period within which such corporation must act as to such extension commences to run from the date of filing the certificate of incorporation and the railroad law as to self-execution and forfeitures applies to street surface railroads in reference to the time limit for beginning and completing the road. But the. laws of New York, 1901, chapter 494, amending section 93 of 74 State, Crow v. Lindell Ry. Co., 151 Mo. 162, 52 S. W. 248, Mo. Const. 1865; Mo. Rev. Stat. 1889, § 2779. 75 City R. Co. v. Citizens' St. R. Co., 166 U. S. 557, 17 Sup. Ct. 653, 41. L. Ed. 1114. 76 Louisville Trust Co. v. Cincinnati (U. S. C. C. A., 6th Cir.), 47 U. S. App. 36, 22 U. S. C. C. A. 334, 76 Fed. 296. the Railroad law, and chapter 508 of the laws of 1901, amending section 5, laws 1890, chapter 565, do not apply to street surface railroads which forfeited franchises before the enactment of such laws.77 § 206. Changing articles of incorporation - Electric light, etc., companies owning and operating railroads.- Where a statutory power is conferred upon a corporation to amend its articles of incorporation, such authority will not be extended beyond the intent of the statute, especially where the statute contains a proviso that the original purposes of the organization shall not be thereby substantially changed. Thus, such legislative enactment does not empower a corporation to change its articles of incorporation, so as to enable it to own and operate a street railway using electricity or other motive power over a specified route with a right to extend its lines outside of the city, where said company is organized for the carrying on of the business of manufacturing gas and electricity and furnishing the same for light, heat, power and other purposes.is § 206a. Certificate of amendment - When not original certificate of new company.- Where a certificate of amendment to a charter of a corporation professes on its face to be an amendment and sets forth the language of each article as it will read when amended, in pursuance of the code, such amendment is not the original certificate of an entirely new company, but an amendment of an existing charter.79 77 Matter of Brooklyn, Queens County & Suburban R. Co., 185 N. Y. 171, 77 N. E. 994, affg. 94 N. Y. Supp. 113, 106 App. Div. 240. 78 State, Steubenville Gas & Elec. Co. v. Taylor, 55 Ohio St. 61, 44 N. E. 513, 35 Ohio L. Jour. 384, 28 Chic. Leg. News, 362, 4 Am. & Eng. Corp. Cas. (N. S.) 470. Under Ohio Revised Statutes, article 3238a, that electric light and power companies may, by complying with certain requirements, become railroad companies and construct and operate the same under statutes of New York, see the Railroad Law (Chap. 565 of Laws of 1890, as amd. by chaps. 362 and 367 of Laws of 1891. and by chaps. 306, 460, 534, 676. and 700 of Laws of 1892); Hamilton's Railroad Laws of N. Y. (ed. 1899), "Railroad Law," § 21, p. 14: Wells on Railroad Corp. in N. Y. (ed. 1899), p. 143, § 21. amd. by Laws of 1894, chap. 648, and by Laws of 1898, chap. 170; Id. (Hamilton), p. 689. 79 Brown v. Maryland Teleph. & Teleg. Co., 101 Md. 574, 61 Atl. 338. 80 § 207. Corporate powers- Consolidation. In certain of the States there are constitutional provisions forbidding the consolidation of telegraph lines, the holding a controlling interest in, or the acquiring competing lines, also that railroads shall not consolidate nor control each other's competing or parallel lines.8 Where, after a new constitution has been adopted, a railway, chartered prior to such adoption, is consolidated with other roads or accepts new privileges, all contracts, privileges and franchises conferred are subject to the provisions of the new constitution.81 Consolidation generally operates under the power conferred as a merger of the old companies into a new one. The authority, therefore, as in case of a sale or lease, must be granted by the legislature. It does not arise by implication.82 But by consolidation corporations do not become extinct, so as to be unable to wind. up their business, and one of the old corporations acting in pursuance of a previous vote of its executive committee, may by its president and secretary, after consolidation, assign the legal title to a patent in writing to the new corporation.83 80 3 Cook on Corp. (4th ed.), pp. 2362-2660, compilation of constitutions and statutes as to corporations. 81 San Antonio Traction Co. v. Altgelt, 200 U. S. 304, 26 Sup.Ct.case as to rate of fare. 82 Morawetz on Priv. Corp. (ed. 1882), §§ 543-558; Booth on St. Rys. (ed. 1892), § 429; 3 Cook on Corp. (4th ed.), §§ 892, 894–897; Topeka Paper Co. v. Oklahoma Pub. Co., 7 Okla. 220, 54 Pac. 455. As to consolidation of street railroads, under Railroad Law of New York, see Wells on Railroad Corp. in N. Y. (ed. 1899), pp. 203-219, 708-212, and cases cited. Under Laws of 1875, chap. 108, street railroads might consolidate, Matter of Washington St. A. & P. R. Co., 115 N. Y. 442, 26 N. Y. Supp. 504. The Railroad Corporation Law as to consolidation is also given in Hamil ton's Railroad Laws of N. Y. (ed. 1899), §§ 70-84 of "The Railroad Law." See Cumming & Gilbert's Annot. Genl. Stat. and Laws N. Y., vols. 1-3 (ed. 1901) and vol. 4 (1906). Consolidation constitutes a merger, State, Nolan v. Montana R. Co., 21 Mont. 221, 53 Pac. 623, 11 Am. & Eng. R. Cas. (N. S.) 353. See 1 Thompson on Corp. (ed. 1895), § 305 et seq. 83 Edison Elec. Light Co. v. New Haven Elec. Co., 35 Fed. 233; Laws of N. Y., 1884, chap. 367, § 5, provided for consolidation of existing corporations and the transfer of their property to the new company; section 6 provided that no claim against any corporation so consolidated should be impaired; Rev. Stat. N. Y., pt. 1, chap. 18, tit. 3. § 9, provided that the directors and managers of any dissolved corporation at the time of its dissolution § 208. Consolidation to prevent competition- Misuse of charter privileges - Equity. The public welfare lies at the basis of a grant of corporate privileges. The interests of the stockholders are but secondary. Therefore, if a corporation willfully frustrates the intention so underlying its grant of power, by an act which is a fraud on the public, it is not entitled to the equitable consideration of the courts. This rule was applied in a case where the aid of equity was sought by an electric light and heat company, to restrain competition in furnishing electric light. The injunction sought was refused it appearing that the charter privileges of the petitioner had been misused, so as to hinder the public interests by a combination with another corporation, so as to suppress the use of the commodity for the supplying of which the franchise was granted.84 Abandonment-Nonuser 85 $209. of franchise-Duty to operate Forfeiture.- Deliberate selection of another route by a street railway company and the disuse of the one granted for over twenty years, constitutes, to the extent of the actual nonuse, an abandonment of the right to use certain city streets." An implied condition attaches to the grant of franchise to a street railway corporation, that it shall be held for the public benefit. Therefore, where such a corporation has accepted a city franchise and constructed its road under the same, it cannot, to the detriment of the city and its inhabitants, arbitrarily discontinue the operation of any part of its road. And, though it has been excluded, whether rightfully or wrongfully, from a county bridge, it cannot avoid its duty to operate a portion of its road, where it is practicable to operate both portions of said road without crossing the bridge.se Although there has been a nonuser of a street railway franchise for more than should be trustees of its creditors and stockholders, with full power to seettle its affairs; Rev. Stat. U. S., § 4898, provides that every patent shall be assignable in law by an instrument in writing. 84 Scranton Elec. L. & H. Co. v. Scranton Illum. H. & P. Co., 122 Penn. St. 154, 9 Am. St. Rep. 79, 3 85 Louisville Trust Co. v. Cincinnati (U. S. C. C. A., 6th Cir.), 47 U. S. App. 36, 23 U. S. C. C. A. 334, 76 Fed. 296. 86 State, Bridgeton v. Bridgeton S. & M. Trac. Co. (N. J. Sup., 1899), 43 Atl. 715. |