of a quo warranto against the company, to prevent them from opening the part completed, until the whole is perfect.11

7. And an information in the nature of a quo warranto, under the Massachusetts statute, will not lie against a railway company, in behalf of a stockholder, merely because they issued stock below the par value,12 and began to construct their road, before the requisite amount of stock was subscribed, it not appearing that the petitioner's private right was thereby put at hazard.13

8. The form of the judgment in proceedings of this character will depend upon the facts proved, and the object to be attained. Where the defect in defendant's right is merely formal, like the omission to take the requisite oath, the judgment is for a suspension of the exercise of the function until qualified by compliance with the requisite formality.14 But if there be shown, or 11 Attorney-General v. Birmingham Junction Railw., 8 Eng. L. & Eq. 243. 12 See Howe v. Derrel, 43 Barb. 504; Commonwealth v. Farmers' Bank, 2 Grant's Cas. 392.

13

Hastings v. Amherst & Belchertown Railw., 9 Cush. 596. In this case the charter provided that the road extend "through Amherst." Another section of the charter provided that the road might be divided into two sections, one extending "to the village of Amherst," and the other from "Amherst to Montague." It was held, that taking land for the road, upon a route not terminating "in either village of Amherst," was not the exercise of a franchise, not granted by the charter.

Any material departure from the points designated in the charter for the location of a railroad, is a violation of the charter, for which the franchise may be seized upon quo warranto, unless the legislature has waived this right of the state by acts recognizing the legality of such violation of the charter. Mississippi, &c. Railw. v. Cross, 20 Ark. R. 443.

Where an act incorporating a railroad provided that no subscription should be received and allowed, unless there should be paid to the commissioners at the time of subscribing five dollars per share, and this provision was not complied. with, but the corporation organized itself, elected directors, &c., and began the construction of its road, by making contracts to grade it, some of the contractors not being aware of this failure to make the stipulated payment on the shares at subscription, and one of the stockholders, who was aware of that failure when he became a stockholder, and who had voted at the election of directors, and otherwise aided in setting up the corporation, applied to the court for leave to file an information in the nature of a quo warranto against the directors, to compel them to show by what authority they exercised their powers: it was held that this application should be rejected. Cole v. Dyer, 29 Georgia R. 434.

14 Rex v. Clarke, 2 East, 75. But a judgment of ouster will conclude the party in any subsequent proceeding. Id.

confessed, a total defect of title in defendant, there is a judgment of ouster, or forfeiture.15 And where it is intended to dissolve the corporation, judgment to that effect should be given in form.15

9. The relator is liable to costs if he fail, and is entitled to recover costs if he prevail ordinarily. But where the office is one where the party is compellable to serve, and is accepted and held in good faith, it is not common to allow costs against the incumbent upon judgment of ouster.16

10. In some of the states a process or proceeding under the name of "Quo Warranto" has been applied to test the question of corporate existence and power, on the ground of forfeiture of corporate rights by means of the omission to perform acts required by the charter, or of an excess of power having been resorted to, in either case in violation of granted powers and duties.17

11. And where the charter of a plank road company provides for the security of travel and for the enforcement of the duty of the company by suitable penalties, and the legislature, after the road was built and in use, imposed an entire forfeiture of the whole franchise of the corporation for failure to keep any portion of the road in repair, it was held to be such a modification of the charter as did not come within the proper exercise of the police power of the state, and therefore void as a violation of the contract in the grant of the charter.18

12. But where a turnpike charter provides penalties upon the company and its agents for neglecting to keep the road in good and perfect repair, such provision cannot be held to deprive the state of its sovereign power to annul a grant when its purposes have failed, through either the positive acts or neglect of the grantees; and when the fact of such act or neglect is duly established, the special remedy provided by the charter will be regarded as merely cumulative. It is of the very essence of a

15 State v. Bradford Village, 32 Vt. R. 50; Rex v. Tyrrell, 11 Mod. 335. 16 Rex v. Wallis, 5 T. R. 375; State v. Bradford Village, supra.

17 Danville & W. L. Plank Road Co. v. The State, 16 Ind. R. 456. See also The People v. J. & M. Plank Road Co., 9 Mich. R. 285, where the extent of the remedy and the form of procedure is extensively discussed, but by a divided

court.

18 The People v. J. & M. Plank Road Co., 9 Mich. R. 285.

corporation, as a political existence or abstraction, that it should always be liable to dissolution by a surrender of its corporate franchises, and by a forfeiture of them, either by non-user or misuser.19

13. In a case where the statute directed the public prosecuting officers to take proceedings to determine whether the charter and franchises of a turnpike company had become forfeited by non-user or abuser, where no form of remedy is prescribed, it was held that scire facias was the proper one to be adopted, and all that is required to be set forth in the writ is enough to inform the company of the causes of complaint and the extent of redress sought.19 This procedure is very much the same, in effect, as that by quo warranto, already discussed, except that it is in the form of a civil action.19

14. It is no excuse for a turnpike company not keeping its road in repair, that the state have chartered a railway along the same route, and thereby disabled the company from maintaining its road in the state of repair required by the charter.19 Nor is it a bar to the proceedings that the company have applied all their tolls to the repair of the road.19

19 Wash. & Balt. T. Road Co. v. The State, 19 Md. R. 239. The particular forms of the pleading, both on the part of the plaintiff and defendant, are here extensively discussed, as well as many questions in regard to the admissibility of evidence.

§ 205. 1. INJUNCTIONS in courts of equity, to restrain railways from exceeding the powers of their charters, or committing irreparable injury to other persons, natural or artificial, have been common for a long time in England and in this country.1 But the courts of equity will not undertake to determine questions of engineering, and take the construction of a railway under their own control, in order to keep them within their powers.1 A question of engineering is ordinarily referred to a disinterested engineer,1 and in such case the court bases its order upon the report of such engineer.1

2. The courts of equity will enjoin a railway from taking land, ostensibly under their powers, for one purpose, when in fact they desire it for another, not within their powers.1 In all cases of doubt, in regard to the extent of the powers of the company, the * conclusion should be against its exercise, and the company should go to the legislature instead of the courts to have their powers enlarged.1

1 Webb v. The Manchester & Leeds Railw., 1 Railw. C. 576; 4 My. & Cr. *474, 475

116.

3. In an early case,2 it was held by the Vice-Chancellor, that the fact that the company were proceeding to take lands, after their powers had expired, was no ground of interfering by injunction, unless it were shown that irreparable mischief would otherwise ensue. But the Lord Chancellor held, in the same case, that where it is clearly shown that a public company is exceeding its powers, this court cannot refuse to interfere by injunction.3

2 River Dun Navigation Co. v. North M. Railw., 1 Railw. C. 135. The general ground upon which courts of equity will interfere, by injunction, in the case of railways, to keep them within their charter powers, is very fully stated in this case, by Lord Cottenham, Chancellor. "I am not at liberty (even if I were in the least disposed, which I am not) to withhold the jurisdiction of this court as exercised, in the first case in which it was exercised, that of Agar v. The Regent's Canal Company, Cooper, 77, where Lord Eldon proceeds simply on this, that he exercised the jurisdiction of this court for the purpose of keeping these companies within the powers which the acts give them, and a most wholesome exercise of the jurisdiction it is; because great as the powers necessarily are, to enable the companies to carry into effect works of this magnitude, it would be most prejudicial to the interests of all persons with whose property they interfere, if there was not a jurisdiction continually open, and ready to exercise its power, for the purpose of keeping them within that limit which the legislature has thought proper to prescribe for the exercise of their powers. On that ground I should never be reluctant to entertain any such application. I think it most essential to the interests of the public that such jurisdiction should exist and should be exercised whenever a proper case for it is brought before the court, otherwise the result may be that, after your house has been pulled down and a railway substituted in its place, you may have the satisfaction, at a future period, of discovering that the railway company were wrong. It would be a very tardy recompense, and one totally inadequate to the injury of which the party has to complain; and individuals would be made to contend with companies who often have vast sums of money at their disposal, and that too, not the money of the persons who are contending. It is a most material point to consider, when you enter into a contest with an individual, whether he is spending his own money, or money over which he has a control, or in which he has comparatively a small interest. If these companies go beyond the powers which the legislature has given them, and in a mistaken exercise of those powers interfere with the property of individuals, this court is bound to interfere. That was Lord Eldon's ground in Agar v. The Regent's Canal Company, and I see no reason whatever to depart from the rule there laid down and acted upon; but then of course it must be a case in which the court is very clearly of opinion that the company are exceeding the powers which the act has given them."

* Directors of a limited company will not be restrained from going into business and exercising their borrowing powers until the whole of the nominal capi