tion or certificate of incorporation may, subject to prescribed limitations, be amended at any time by the corporators or stockholders, or by a majority of them, by complying, as in the organization of a corporation, with certain conditions.23 Such statutes have been sustained by the courts,24 and it has been held that the legislature may amend a charter either directly or by authorizing the corporation to make the change.25 And when the legislature authorizes a course of procedure whereby a charter may be amended, action in conformity thereto does not make the amendment, but it comes into existence through the operation of the statute.26

The statutory provisions govern as to what corporations may exercise the power of amendment,27 and the extent of the power depends

Soc. of United States, 194 N. Y. 212, 22 L. R. A. (N. S.) 420, 87 N. E. 443.

26 Lord v. Equitable Life Assur. Soc. of United States, 194 N. Y. 212, 22 L. R. A. (N. S.) 420, 87 N. E. 443.

27 Membership corporations may amend their charter under sec. 7 of the New York General Corporation Law. In re Creditor's Audit & Adjustment Ass'n, 72 N. Y. Misc. 461, 131 N. Y. Supp. 263.

A mining company may exercise the power to purchase stock in other mining companies under Mich. Pub. Acts 1905, p. 153, No. 105, since the corporate charter is subject to alteration, amendment or repeal. Bigelow Calumet & H. Min. Co., 167 Fed. 704, aff'd 167 Fed. 721.

V.

A street railroad company may amend its charter pursuant to the authority conferred by Alabama Act March 20, 1903 (Acts 1903, p. 116), although sec. 47 of the Act of October 2, 1903 (Acts 1903, p. 310) provides a method for amendment, since the saving clause of the latter act preserves the right of amendment then existing. Montgomery Amusement Co. v. Montgomery Traction Co., 139 Fed. 353.

Texas Rev. St. 1895, tit. 21, art. 647, extended the right to amend in 1902 only to a corporation incorporated by special act which would have been authorized to incorporate under the

of course upon the terms of the statute, and it can only be exercised within the limitations and subject to the conditions thereby imposed.28 Usually an amendment may be adopted if it contains provisions which might have been inserted in the original charter,20 and in this manner an adequate and speedy method is provided whereby a charter may be changed if a mistake is made so that it does not express the intent of the corporators or stockholders.30 Under such authority it has been held proper to adopt amendments classifying directors,31 or authorizing the corporation to enter into a partnership.32 Similarly street railroads may change their lines and termini,33 and railroad companies may change their routes,34 and when the same corporation cannot be both a street railway company and a commercial railroad, it may amend its charter to comply with the law.35 A statute authorizing a corporation to change the "location

provisions of title 21 as they then existed, and a company with both trading and banking privileges, which was not authorized to incorporate thereunder could not avail itself of the article for purposes of amendment. In re Western Bank & Trust Co., 163 Fed. 713.

28 An Ohio statute, for example, provided that a corporation organized under the general laws might amend its articles of incorporation so as to change its corporate name, or the place where it was located, or where its principal business was to be transacted, so as to modify, enlarge or diminish the objects or purposes for which it was formed, or so as to add thereto anything omitted from, or which might lawfully have been provided for in, such articles originally; provided, however, that nothing contained in the section should authorize a corporation by amendment, to increase or diminish the amount of its capital stock, or to change substantially the original purposes of its organization. Ohio Rev. St. § 3238a. See, as to this provision, State v. Taylor, 55 Ohio St. 61, 44 N. E. 513. 29 Bond v. Atlantic Terra Cotta Co., 137 N. Y. App. Div. 671, 122 N. Y. Supp. 425, rev'g 66 N. Y. Misc. 546,

123 N. Y. Supp. 1085; News-Register Co. v. Rockingham Pub. Co., 118 Va. 140, 86 S. E. 874.

30 Casper v. Kalt-Zimmers Mfg. Co., 159 Wis. 517, 150 N. W. 1101, 149 N. W. 754.

31 Bond v. Atlantic Terra Cotta Co., 137 N. Y. App. Div. 671, 122 N. Y. Supp. 425.

32 Under Virginia Code 1904, § 1105a, subsec. 2, cl. "h", providing that certificate of incorporation may contain any provision that incorporators may choose to insert for regulation of business, and any provision creating, defining, limiting or regulating the powers of the corporation, etc., ample power is conferred to provide authority in the charter of any private business corporation to do any act not unlawful in itself and not prohibited by statute, and the charter may be amended so as to authorize a corporation to enter into a partnership. News-Register Co. v. Rockingham Pub. Co., 118 Va. 140, 86 S. E. 874.

33 Montgomery Amusement Co. v. Montgomery Traction Co., 139 Fed.

353.

34 Collier v. Union R. Co., 113 Tenn. 96, 83 S. W. 155.

35 David Bradley Mfg. Co. v. Chi

of its principal office," has been held broad enough to confer power to authorize a change of the principal place of business of the corporation.38 Where an agreement provided for the creation of a corporation to sell and distribute the property of a partnership, an amendment making it obligatory instead of discretionary to make a certain amount of sales was held authorized by the agreement.37

But this granted power of amendment cannot be exercised to change the corporation in such a manner as to make an entirely different kind of a corporation.38 And when a corporation acquires

may not insert a provision in its constitution which was adopted after its organization, pledging members to the support of a certain political organization and providing that if any member of the corporation shall be expelled for treason to such political organization he shall not be reinstated, and that if a dispute shall arise within the corporation, a specified number of members holding to the constitution of the political or ganization shall control the property of the social and literary corporation. Stein v. Marks, 44 N. Y. Misc. 140, 89 N. Y. Supp. 921.

Under a statute authorizing a corporation to amend its charter so as to change its name and so as to enlarge or diminish the purposes for which it was formed, but providing that the original purposes should not be substantially changed, it was held that a corporation organized to manufacture and furnish gas to light the streets and public and private buildings of a municipality might amend its charter so as to authorize it to employ for that purpose both gas and electricity. Picard v. Hughey, 58 Ohio St. 577, 51 N. E. 133.

But where a corporation was organized for the purpose of manufacturing gas and electricity, and furnishing the same for light, heat and power and for such and other purposes as they may be used by the cit izens and corporations in a certain city and its vicinity, it was held that

property for public uses under the power of eminent domain, it cannot divest itself of such public uses by another amendment to its charter, and then hold the property for private uses.39 It is too late, after the articles of a corporation have expired, to adopt an amendment extending the life of the corporation, since the effect is to create a new corporation.40

§ 4344. Procedure, registration, fees, etc. In amending a charter under a general law, or in accepting an amendment by a special act, all conditions precedent prescribed by the statute must be at least substantially complied with. A charter provision cannot be an

an amendment of its articles so as to make it a gas, electric and traction company, with power to acquire, own, operate, lease and maintain a street railroad in such city, to be operated by electricity or other motive power for the conveyance of passengers, freight, express and mail matter over a certain route and extending to such other points within or without the said city as may be selected, substantially changed the original purpose of the company, within the meaning of

a

statute allowing amendment of charters. State v. Taylor, 55 Ohio St. 61, 44 N. E. 513.

Action on the part of a corporation to change the nature of its business is to be exercised, if at all, by direct proceedings taken pursuant to the statute authorizing it. Colgate v. United States Leather Co., 75 N. J. Eq. 229, 19 Ann. Cas. 1262, 72 Atl. 126.

Under Mass. St. 1903, c. 437, §§ 40, 41, an agreement of association may be amended so as to provide for two or more classes of stock, with such preferences, voting powers, restrictions and qualifications as may be adopted by two-thirds of the stockholders. Page v. Whittenton Mfg. Co., 211 Mass. 424, 97 N. E. 1006.

The New Jersey General Corporation Act authorizes a change in the nature of the business of the company by the vote of two-thirds in in

terest of the stockholders. Colgate v. United States Leather Co., 75 N. J. Eq. 229, 19 Ann. Cas. 1262, 72 Atl. 126.

Under Ky. St. 1909, §§ 570, 574 (Russell's St. §§ 2156, 2145), providing that corporations may file an acceptance of the provisions of the Constitution with the secretary of state, and authorizing an amendment of the articles of such corporation, and under § 559 (§ 2144) providing that the articles of a corporation may be amended by the consent of the owners of two-thirds of the stock, a corporation could amend its articles of incorporation during its corporate life, but cannot revive the corporate existence by adopting an amendment after the articles have expired. Home Bldg. Ass'n v. Bruner, 134 Ky. 361, 120 S. W. 306. As to extension and revival of charters, see generally

nulled by waiver, since such action would operate as an amendment.42 Nor will mere delay constitute waiver or estoppel, barring the state from insisting on the performance of statutory duties imposed on a corporation which increases its capital stock, and thereby amends its charter.43 If a statute contemplates corporate action by the board of directors, an amendment which is merely assented to by the majority stockholders is not binding on the other stockholders. But where a charter reserves the power of amendment upon the unanimous petition of the president and directors of the corporation, the condition is substantially complied with where the president and directors unanimously accept an amendment, even though the amendment was passed without any petition.45 It has also been held that where an original agreement provided that amendments could be made by the vote or written consent of stockholders representing at least four-fifths of the capital stock, such agreement was binding on the stockholders.46

The statutory provisions must also be examined to determine what conditions precedent must be complied with, as whether notice of a stockholder's meeting is required,47 whether public officials or other persons shall be notified,48 and whether or not the amendment must be acknowledged.49 When nothing is said as to the qualifications of

VII Priv. Corp.-20

able and the action under § 3907 was effectual. State v. Yoder, 39 Mont. 202, 103 Pac. 499.

48 Under sec. 7 of the New York General Corporation Law, if formal application is made to the court upon notice to the attorney general and to such other persons as the court may direct, then, upon due cause shown and on such terms and conditions as may be deemed just, a certificate of incorporation may be amended in respect to its objects and purposes. But if an amended certificate is sought to be filed without notice to the attorney general, such amendment must be limited to the correction of informalities, defects or striking out unauthorized matter. In re Creditor's Audit & Adjustment Ass'n, 72 N. Y. Misc. 461, 131 N. Y. Supp. 263.

49 An acknowledgment of amendments to the original articles of a railroad corporation is not required by Cal. Civ. Code, § 362. Boca & L.