a witness to signatures, interest in the charter will not disqualify such witness.50 If the statute requires the filing or registration of the amendment in some public office, such provision must be complied with,51 and if an amendment is required to be filed with the secretary of state, no rights can be claimed under amendments which have not been filed.52 But no duty rests upon a secretary of state to file a certificate of amendment to the articles of a corporation where such amendment violates a statute of the state.53 By statute a corporation may be required to pay the same fees upon an increase of stock, proportionate to the amount of the increase, as those required upon original incorporation or renewal of the corporate charter.54 And an excise fee imposed by a statute as a condition of a valid increase of corporate stock, has been held an incident of a fundamental change in the corporate charter whether made directly by the legislature or by execution of a delegated power to make a change.55 An extension of a corporate charter has been held R. Co. v. Sierra Valleys R. Co., 2 Cal. 50 Pope v. Merchants' Trust Co., 118 Tenn. 506, 103 S. W. 792. 51 Casper v. Kalt-Zimmers Mfg. Co., 159 Wis. 517, 150 N. W. 1101, 149 N. W. 754; State v. Railroad Commission, 137 Wis. 80, 117 N. W. 846. As to filing and recording incorporation papers, see § 215 et seq., supra. Under Wis. St. 1898, § 1820, which provides for filing of articles of incorporation and requires a fee therefor as well as for amendments, such filing is essential. State v. Railroad Commission, 137 Wis. 80, 117 N. W. 846. Exercise of the power granted by Wis. Rev. St. 1878, § 1826, to increase capital stock involves an amendment to the corporate charter under § 1820 as to filing amendments, and, therefore, it is the duty of the corporation to file proof thereof with the secretary of state and comply with the statutes, in order that the amendment may be valid. State v. Northern Pac. R. Co., 157 Wis. 73, 147 N. W. 219. Under Iowa Code 1897, §§ 1615, 1618, the charter of a corporation may be extended by amendment of the articles of incorporation without readopting and refiling the articles as in the case of an original incorporation. C. Lamb & Sons v. Dobson, 117 Iowa 124, 90 N. W. 607. 52 Boca & L. R. Co. v. Sierra Valleys R. Co., 2 Cal. App. 546, 84 Pac. 298. 53 State v. Nichols, 38 Wash. 309, 80 Pac. 462. 54 Pacolet Mfg. Co. v. Gantt, 68 S. C. 199, 46 S. E. 1005. See § 225, supra. 55 State v. Northern Pac. R. Co., 157 Wis. 73, 147 N. W. 219. All parts of the general law as to the power and government of railroad corporations, and the provision as regards payment of an excise fee in case of increasing capital stock are parts of the charter of the Northern Pacific Railway Company, both by mandate of the general law and by special act. State v. Northern Pac. R. Co., 157 Wis. 73, 147 N. W. 219. not to operate as the creation of a new corporation requiring the payment of fees to the state,56 and a statute imposing fees for the original organization of a corporation does not apply to the renewal by amendment of the original articles of a corporation which has terminated by lapse of time.57 A statute as to fees, which is retrospective, does not apply to corporations which have been promptly renewed prior to its passage, where there has been a wrongful refusal by the secretary of state to file the amendment.58 Subscribers for stock in a corporation who are sued on their contract cannot object to the validity of an amendment by which the stock was increased, where a statute provides that want of legal organization is not available to members who are sued on their contracts.59 VI. ACCEPTANCE OF AMENDMENT § 4345. Necessity of acceptance. An amendatory act, like an original charter, must be accepted by the corporation or its members.60 It can make no difference that, in granting the original As to the rights of minority members in regard to rmendments, see §§ 4001-4009, supra. A general law, providing that legislative amendments of the charters of corporations shall not become operative unless accepted by the corporation within a certain time and in a certain mode, does not apply to acts of the legislature which may be referred to the superintending or advisory power which a legislature has over a corporation which it has State v. New Haven & N. Co.. 43 Conn. 351, aff'd 104 U. S. 1, 26 L. Ed. 629. created. Mulloy v. Nashville & D. R. Co., 8 Lea 427. Virginia. Yeaton v. Bank of Old Dominion, 21 Gratt. 593. charter, the legislature reserved the power to revoke or amend it, for it has no more power to compel persons to continue as a private corporation under an amended charter than it has to create a private corporation in the first instance without the consent of the members.61 On this point it was said in a Virginia case: "The power of the legislature 'to repeal, alter, or modify the charter of any bank at its pleasure' must be limited to this extent. It may certainly repeal the charter of any bank, but it cannot compel a bank to accept an amendment or modification of its charter. Nor is any such amendment or modification of its charter binding upon the bank without its acceptance. Banks are private corporations, created by a charter, or act of incorporation from the government, which is in the nature of a contract, and therefore, in order to complete the creation of such corporation, something more than the mere grant of a charter is required; that is, in order to give to the charter the full force and effect of an executed contract, it must be accepted. Though the legislature may have the reserved power to amend or modify a charter of incorporation, it can no more force the corporation to accept such amendment or modification than it could have forced upon them the acceptance of the original charter without their consent." As was said, however, in this case, one of the consequences of refusal to accept the amendment is "that the corporation cannot conduct its operations in defiance of the power that created it; and if it does not accept the modification or amendment proposed, must discontinue its operations as a corporate body." 62 * * * An act amending the charter must, like the original charter, be accepted as it is offered. It cannot be accepted in part only, or conditionally, unless this is authorized by the act. It was held, therefore, in a Tennessee case, that where an amendatory act was accepted in terms, but the acceptance was qualified by a proviso introducing a new condition, not authorized by the act, there was no acceptance, and the act did not become a part of the charter.63 61 Sage v. Dillard, 15 B. Mon. (Ky.) 340; Yeaton v. Bank of Old Dominion, 21 Gratt. (Va.) 593. See $239, supra. 02 Yeaton v. Bank of Old Dominion, 21 Gratt. (Va.) 593, per Judge Christian. And see Alexander v. Berney, 28 N. J. Eq. 90; Miller v. American Mut. Acc. Ins. Co., 92 Tenn. 167, 20 L. R. A. 765, 21 S. W. 39. 63 Mulloy v. Nashville & D. R. Co., 8 Lea (Tenn.) 427. And see further § 241, supra. When an amendment to a corporate charter grants a wide variety of powers, it cannot be dissected and accepted in part, but must be accepted as offered by the state. Perkins v. Coffin, 84 Conn. 275, Ann. Cas. 1912 C 1188, 79 Atl. 1070. And see § 241, supra. § 4346. Authority to accept. If an amendment is such as fundamentally to change the constitution of the corporation, or if it confers powers or privileges which are not properly within the general authority vested by the members in the board of directors, the directors cannot bind the members by an acceptance, but the acceptance must be by the members themselves, as constituting the corporation. Thus it is for the members, and not for the board of directors, to accept an amendment authorizing the corporation to increase or decrease the capital stock.64 But if the amendment does not fundamentally change the constitution of the corporation, and merely confers some additional power or privilege, the exercise of which would be within the authority and powers of the board if it had originally been conferred upon the corporation by its charter, it may be accepted by the board of directors. Thus it has been held that the board of directors of a railroad company, who are authorized by its laws to purchase land and locate and erect stations, may accept an act amending the charter of the corporation to the extent of allowing it to acquire land for a station under the power of eminent domain.65 64 Eidman v. Bowman, 58 Ill. 444, 11 Am. Rep. 90. See also Chicago City Ry. Co. v. Allerton, 18 Wall. (U. S.) 233, 21 L. Ed. 902; State v. Oftedal, 72 Minn. 498, 75 N. W. 692; Com. v. Cullen, 13 Pa. St. 133, 53 Am. Dec. 450; Brown v. Fairmont Gold & Silver Min. Co., 10 Phila. (Pa.) 32. As to the rights of minority members in regard to amendments making radical or fundamental changes, see § 4003, supra. Acceptance of a charter must be by the corporators named in the charter, acting as such. Board Water Com'rs City of Hartford v. Manchester, 89 Conn. 671, 96 Atl. 182. Where an amendatory act provided that, before it should take effect, the president should file a declaration of acceptance in the office of the secretary of state, it was held that such a declaration filed by an agent of the corporation, and subsequently ratified by the corporation, was a substantial compliance with the statute. Mem phis & St. F. Plank Road Co. v. Rives, 21 Ark. 302. 65 Eastern R. Co. v. Boston & M. R. R., 111 Mass. 125, 15 Am. Rep. 13. See also Illinois River R. Co. v. Zimmer, 20 Ill. 654; Sprague v. Illinois River R. Co., 19 Ill. 174; Banet v. Alton & S. R. Co., 13 Ill. 504. Where the statute contemplates amendment by acceptance of statutory provisions by vote of a majority of the directors, the assent by the majority owners of stock, without a corporate meeting, is not binding on minority stockholders. Lord v. Equitable Life Assur. Society, 47 N. Y. Misc. 187; 94 N. Y. Supp. 65. And where a statute amending the charter of a bank required the bank to signify its acceptance in writing, under its seal, and signed by its president, it was held that a copy of an order of acceptance taken from the minutes of the proceedings of the directors, certified by the president and cashier under the seal of the bank, was a substantial compliance. Golder v. Bressler, 105 Ill. 419. When the board of directors is authorized to accept an act amending the charter of a corporation, it must, in doing so, act in good faith, and with a view to promoting the general good of the corporation, or its action may be repudiated by the stockholders or members.66 § 4347. Power of majority to bind minority. As has been seen heretofore, if an amendment is of such a character as fundamentally or materially to change the charter or powers of the corporation, a majority of the stockholders cannot bind the minority by accepting it, and a unanimous consent of the stockholders is necessary.67 But if the amendment merely confers additional powers auxiliary to the purposes for which it was created, there may be a binding acceptance by the majority of the members.68 The conflict in the decisions concerning effect of the reservation by the state of power to alter, amend or repeal the charter upon the adoption of amendments by the majority over the dissent of the minority stockholders has been fully considered in discussing the relative rights of majority and minority stockholders.69 § 4348. Form, evidence and presumption of acceptance. The acceptance of an amendment to a corporate charter need not be evi denced by a formal vote or resolution unless expressly required by statute, as such a rule would lead to many practical complications. And it is generally held that the acceptance may be implied from the exercise of power granted or resulting from the amendatory act.70 66 Illinois River R. Co. v. Zimmer, 20 Ill. 654. 67 See § 4003, supra. See also Avondale Land Co. v. Shook, 170 Ala. 379, 54 So. 268; Perkins v. Coffin, 84 Conn. 275, Ann. Cas. 1912 C 1188, 79 Atl. 1070; Atlanta Steel Co. v. Mynahan, 138 Ga. 668, 75 S. E. 980. 68 See $4004, supra. See also In re Sharood Shoe Corporation, 192 Fed. 945. 69 See 84005-4008, supra. 70 United States. Gibbs v. Consolidated Gas Co. of Baltimore City, 130 U. S. 396, 32 L. Ed. 979; Zabriskie v. Cleveland, C. & C. R. Co., 23 How. 381, 16 L. Ed. 488. Alabama. Louisville & N. R. Co. v. State, 154 Ala. 156, 45 So. 296; State v. Montgomery Light Co., 102 Ala. 594, 15 So. 347; Wetumpka & C. R. Co. v. Bingham, 5 Ala. 657. Connecticut. Board Water Com'rs Illinois. Illinois River R. Co. v. Iowa. St. John v. Iowa Business Kentucky. Kenton County Court Louisiana. State v. Louisiana State Maine. Bangor, O. & M. R. Co. v. 7 |