and N. P. Ry. Co. (1897) 115 Cal. 584. But such a plan must have for its object the best interests of the corporation. In determining in any particular case the validity of a voting trust, that is, of an agreement whereby the legal title of the stock together with the right to vote thereon has been transferred to a trustee while the stockholder has retained only an equitable interest, one of two questions will arise: first, what right, if any, has a stockholder who was not a party to the trust to enjoin the trustee from voting on the stock? or second, can a stockholder who has transferred his stock under the trust agreement or a purchaser of his equitable interest revoke the transfer and vote the stock himself? A recent decision in New Jersey is interesting in that each question arose and each was decided in favor of the complainant. The reorganization committee of an insolvent corporation, appointed by a majority of the stockholders, who were citizens of Great Britain, sent to such stockholders a circular, which suggested the formation of a voting trust but did not indicate what powers it was intended to give the trustee nor the duration of the trust. On receiving the consents, the committee conveyed their shares, the legal title to which they still held, to a holding corporation; the conveyance provided that the trust should endure fifty years, and gave the trustee absolute power to vote the shares as it should see fit, revocable only by three fourths of the pooling stockholders. The trust agreement was without consideration. Warren v. Pim (N. J. 1903) 55 Atl. 66. The early cases held that a stockholder could not delegate the right of voting on his stock to a proxy unless express provision to that effect had been made in the charter. These decisions seem to have been based on the principle of the common law, that, where discretionary power of any kind is granted to men, the law requires them to make a personal exercise of that discretion. "Potestas delegata non potest delegari" is the maxim applied. Phillips v. Wickham (1829) 1 Paige's Ch. R. 590, at p. 598. Taylor v. Griswold (1834) 14 N. J. Law 222. The later cases propose a different theory, namely, that every stockholder is entitled to the benefit of the judgment of every other stockholder in the management of the affairs of the corporation. Shepaug Voting Trust Cases (1891) 60 Conn. 553. White v. Thomas Tire Co. (1893) 52 N. J. Eq. 178. Except in particular cases, the court will not enjoin the carrying out of a voting trust at the instance of a stockholder who is not a party thereto. If the purpose of the pool or trust is to secure to the majority stockholders or to one of their number, advantages not participated in by the minority, or if the result of the trust would be to transfer the control of the policy of the corporation to persons having no beneficial interest in the corporation, or even if the agreement aims to control the corporation for a long period of years by a method of selfperpetuation, in a suit brought by one of the minority stockholders, the court will declare the trust void. Fuller v. Dame (1836) 35 Mass. 472. Kreissl v. Distilling Co. of Am. (1900) 61 N. J. Eq. 5.

The right of a non-participating stockholder to interfere depends generally on the validity of the agreement, that is, on the legality of its purpose and result. On the other hand, the stockholder who has been a party to the trust or pooling agreement and later seeks to withdraw and revoke his proxy may attack also the sufficiency of the

agreement. Where the only consideration was the mutual promises of the several stockholders, it has been held that any stockholder may revoke his consent and withdraw his stock at will. Fisher v. Bush, (1885) 35 Hun, 641. He may also revoke where he was forced into the trust by a threat as in the case at bar. The courts treat a voting trust as a power of attorney to vote. Therefore if the power has been coupled with an interest the court will not permit either a stockholder who was a party to the trust or a purchaser from him to revoke the power. Hey v. Dolphin (1895) 92 Hun 230; Smith v. S. F. & N. R. Ry. Co., supra; Chapman v. Bates (1900) 61 N. J. Eq. 658. As stated by the court in Mobile & O. R. R. Co. v. Nicholas (1892) 98 Ala. 92, "In every case in determining the validity of an agreement which provides for the vesting of the voting power in a person other than the stockholder, regard should be had to the condition of the parties, the purpose to be accomplished, the consideration of the undertaking, interests which have been surrendered, rights acquired and consequences to result."

"ACT OF GOD" AS A LIMITATION ON THE LIABILITY OF A COMMON CARRIER.-The liability of an insurer of goods was early imposed on common carriers on grounds of public policy. It was natural, however, for the courts to seek to mitigate this rule where the loss occurred under such circumstances as to negative negligence or fraud. Exemption might have been given whenever the carrier, by disproving negligence on the part of himself or others, could show loss by inevitable accident, and there has been some support for such a position. Walpole v. Bridges (Ind. 1839) 5 Blackford 222. By holding a carrier liable for loss by a fire not started by any violent act of nature such as lightning, Lord Mansfield, in 1785, established a much narrower rule of exemption. Forward v. Pittard (1785) 1 T. R. 29. Under this "Act of God" test, as analyzed by Lord Cockburn in Nugent v. Smith (1875) L. R. 1 C. P. D. 19, the carrier's liability should be relaxed only in those cases of inevitable accident where the loss was occasioned by a sudden, violent and irresistible act of nature which, by the exercise of reasonable care, could not have been foreseen or guarded against. South Carolina has properly broadened the rule to include passive as well as active natural causes. Smyrl v. Niolon (S. C. 1831) 2 Bailey 421.

Lord Mansfield and Lord Cockburn, in giving their definition, both intimated that, for a loss to be by the "Act of God," human agency must not contribute to it, and this statement has been constantly reiterated by both English and American courts. In the light of the facts of the cases it may well have been that all that was originally meant was that the sudden act of nature must be the proximate legal cause. Such, at least, should have been its meaning unless the exemption, already narrowed much within its logical limits, was to be still further contracted. Such seems to have been its interpretation in Pennsylvania and Colorado. Penn. R. R. Co. v. Fries (1878) 87 Penn. St. 234; Blythe v. Denver & R. G. R. R. Co. (1890) 15 Col. 333. As a rule, however, the courts have put on the expression an

indefinite but much more stringent interpretation. Where any culpable human agency of the carrier or another is present as a condition, even though it is not part of the proximate cause, the cases ordinarily hold that the carrier is not excused. Crosley v. Fitch (1838) 12 Conn. 410; Wolf v. American Express Co. (1869) 43 Mo. 421; The New Brunswick S. S. & C. T. Co. v. Tiers (N. J. 1853) 4 Zabriskie 697. New York and perhaps some other jurisdictions, by implication, seem to go further and to hold that if human agency, even though not culpable, is present as a condition, it is enough to negative the carrier's excuse. Miller v. Steam Navigation Co. (1853) 10 N. Y. 431. The carrier's own acts in the line of his duty are, of course, excepted. Price v. Hartshorn (1870) 44 N. Y. 94.

A recent Texas case illustrates an exception to these rules as to the effect of the presence of culpable human agency. Hurst Bros. v. Missouri, K. & T. R. R. Co. (1903) 74 S. W. 69. Here the carrier admittedly failed in his duty by delaying the carriage of the goods, and as a result they were destroyed by a storm. Here was a culpable human agency contributing, as a condition, to the loss, yet the Court held that as the failure of duty was not the proximate cause of the loss the carrier was excused. This is in accord with the weight of authority as to the effect of delay and in accord with what has been suggested as the better general doctrine, but it seems logically irreconcilable with the rule as usually laid down by the courts. Denny v. N. Y. C. R. R. Co. (Mass. 1879) 13 Gray 481; Daniels v. Ballantine (1872) 23 O. St. 532; R. R. Co. v. Reeves (1869) 10 Wall. 176. The New York courts, by applying the general rule strictly to a case of this kind, reach a more logical though, perhaps, a less desirable result. Michaels v. N. Y. C. R. R. Co. (1864) 30 N. Y. 564.

LIMITATIONS ON THE POWER OF PUBLIC SERVICE CORPORATIONS TO WITHDRAW FACILITIES ONCE AFFORDED.-The Supreme Court of Minnesota has recently compelled the Northern Pacific Railway Company, by mandamus, to re-locate its station in a small town, where before removal it had ceased to pay expenses; the reason for the holding being that the neighboring population had relied on the location of the station in laying out its highways and managing its occupations, and was therefore damaged by the removal. State v. Northern Pacific Railway Co. (Minn. 1903) 96 N. W. 81. What is the extent of the duty of public service companies to continue to serve the public after once having entered upon that service? MR. H. W. CHAPLIN, in 16 Harvard Law Review 555 (June 1903), suggests that under special circumstances, it may soon even be held to prevent a permanent withdrawal from the public service. The principal case presents a narrower aspect of the same general question raised by MR. CHAPLIN, namely, whether a railroad company can change the method or extent of its operations so as to damage a certain part of the public, who have relied on its service. Under these circumstances two considerations are of special importance, (1) what effect will the proposed change have on the general public, whose convenience it is the company's duty to serve and (2) what damage, if any, will the company itself suffer?

The question generally arises, where either, as in the principal case, a station has been moved, or where the company endeavors to abandon part of its road. Where the duties of the company are not expressly regulated by charter the cases appear to agree in holding, that when the public would be damaged, and the railroad is merely making the change to increase an already profitable business, the public will be protected. State v. R. R. Co. (1861) 29 Conn. 258. But where financial loss threatens the railroad, unless a change is made, while private persons only and not the general public would be damaged, the railroad will not be interfered with. Sherwood v. R. R. Co. (1897) 94 Va. 291; People v. R. R. Co. (1886) 103 N. Y. 95. Where, however, as in the principal case, the alternatives are damage to the railroad or to the general public, a more difficult question arises. In cases analogous to the principal case it has been generally decided in favor of the public. In arriving at this conclusion, the courts have suggested various reasons, as, for example, that after once exercising its franchise, there is a legal obligation to continue so to do, People v. R. R. Co. (1862) 24 N. Y. 261, at p. 269; Farmers Loan and Trust Co. v. Hemming (C. C., D. Kan. 1878) Fed. Cas. 4,666; or that its obligation to serve the public is the "consideration" for which its franchise was given, State v. Traction Co. (1898) 62 N. J. L. 592; R. R. Comm. v. R. R. Co. (1874) 63 Me. 269; Thomas v. R.R.Co. (1879) 101 U. S. 71; or that it is exercising a delegated governmental function, State v. Spokane Street R. R. Co. (1898) 19 Wash. 518; or, that a contract exists between it and the state, Leverett v. R. R. Co. (1895) 96 Ga. 385. On final analysis, however, the cases would seem to rest on the common law duty to serve the public.

If this result is the correct one, some apparent difficulties arise. Suppose the continuance of the service would compel the railroad to raise its rates on other portions of its road to meet the loss it suffers at the disputed point; or, suppose it would be compelled to cease operations altogether, to the public damage; or, that it would have to go into the hands of a receiver; or, again, what would the Court do if a receiver was in charge? There may be a solution to these and similar questions in this, that under such circumstances the object should be to aid the public, and by the public is meant the general public in anyway affected by the road. R. R. Co. v. Dustin (1892) 142 U. S. 492; Commonwealth v. R. R. Co. (1858) 12 Gray 180. Therefore, when an extreme case, as above suggested, arises, the courts, though not weighing the financial loss to the railroad, may consider what general effect this will have, and if, on the whole, there is damage to the public, deny the relief asked for in the particular case without thereby reaching a result inconsistent with that reached in the above cases. If relief is granted to the public, as in the principal case, irrespective of the loss to the company, should it be granted where the public demands a new service of the railroad, which it has not before enjoyed? This analogous question has arisen frequently, but has always been answered in the negative, and this seems to be the correct result, for the railroad, not having done any act on which the public has relied, no obligation has arisen which can outweigh its threatened loss. State v. R. R. Co. (1899) 51 La. Ann. 200; People v. R. R. Co. (1887) 104 N. Y. 58.

RELATION OF SHAREHOLDERS AND CREDITORS OF A COrporation TO ITS DIRECTORS.-Much confusion has arisen in the cases dealing with the relation of the directors of a corporation to its stockholders and creditors through the loose use of the terms trust and trustee, to cover fiduciary relations other than those springing from the technical trust, and through the fact that both sets of relations often give rise to the same rights and duties. The subject has been further confused by the fact that stockholders, and in certain circumstances creditors, are given a remedy in equity against directors of a corporation, where the corporation fails to act against them. The courts usually describe the directors as trustees for the shareholders and creditors, and speak of the latter as cestuis. In certain jurisdictions giving strict effect to this loose terminology they have refused to permit the bar of the statute of limitations to be interposed by a director against the stockholder or creditor, on the ground that the statute does not run in favor of a trustee. Williams v. McKay, (1885) 40 N. J. Eq. 189. Ellis v. Ward et al. (1890) 137 Ill. 509.

The Supreme Court of Wisconsin has had occasion, recently, to examine these cases, and has decided that the statute is a bar to such action, since the corporation could have maintained an action at law, and the creditors are merely enforcing this right of action in equity. Boyd v. Mutual Fire Association, (Wis. 1903) 94 N. W. 171. This seems to be based on more logical reasoning. The corporation holds title to all corporate property. With respect to that property, therefore, the directors are merely agents entrusted with possession, and so cannot be technical trustees. The mere fact that, as an element of their contract of agency arising out of the fiduciary capacity in which they act, they are amenable to much the same rules as trustees with respect to property in their possession, or that equity assumes control over their acts, does not change the inherent character of their relation to the corporation. Trustee, used to describe that relation, merely means fiduciary. Spering's Appeal. (1872) 71 Pa. St. II. 2 Pomeroy's Eq. Juris. §1091. Nor does the fact that the stockholders or creditors have equitable remedies against the directors make the latter trustees for them The stockholder or creditor does not sue in his own right, but solely in the right of the corporation. 2 Pomeroy Eq. Juris. §1094. Greaves v. Gouge, (1877) 69 N. Y. 154, at p. 157. To say that the director is his trustee describes his remedy, not his right. He is given a remedy in equity because the law has not provided for the situation here arising from the peculiar nature of the corporate person. Incapable of acting except through its agents it finds itself helpless if its agents refuse to act for it. Further, the relief given in this situation is analogous, perhaps, to that where a cestui enforces the trustee's claim in equity, either against agents defaulting in trust business, the trustee refusing to sue at law, Att'y General v. the Corporation (1844) 7 Beav. 175, or, more generally, against third parties on trust claims when the trustee refuses to act. Whether or not the corporation can properly be said to hold its claim in trust for shareholders and creditors is immaterial in determining whether or not the statute is a bar to suits against the director. Wych v. East India Co. (1734) 3 P. Wms. 309. In the