I conclude that the right of condemnation was taken away from the respondent (an agricultural society incorporated under the Membership Corporations Law) by an amendment of the Membership Corporations Law by chapter 722 of the Laws of 1926. The amendment appears in section 206 (formerly section. 194) of the Membership Corporations Law.
Former section 194 (as amd. by Laws of 1920, chap. 71), prior to the amendment of 1926, provided: “An agricultural corporation incorporated under this chapter * * *, which has issued or shall hereafter issue capital stock * * *, shall be subject to the Business Corporations Law, the Stock Corporation Law and the General Corporation Law, and not to the provisions of this article in conflict therewith, nor to article two of this chapter.” (Article 2 contained general provisions relating to membership corporations.) The provisions of then article 13 on agricultural societies which were not “ in conflict ” with the other laws remained in force, such as the right to condemnation. (§ 190, in part; now § 201.)
That was the status of the law when in 1921 this society decided to issue capital stock. When the Legislature changed section 194 to section 206, it amended it so as to provide that an agricultural society “ which has issued or shall hereafter issue capital stock, entitling its shareholders to dividends from the profits of the corporation, shall be subject to the Stock Corporation Law and not to the provisions of this chapter.” Instead of the language “ and not to the provisions of this article in conflict therewith,” the language used is, “ and not to the provisions of this chapter.” The Legislature clearly meant to take away from such a society which “ has issued ” capital stock, the right to operate under any of the provisions of “ this chapter ” (Memb. Corp. Law). That included the right *34of condemnation; whereas under former section 194, the right of condemnation was not taken away because it was not a provision of that “ article ” in conflict with the Business Corporations Law, the Stock Corporation Law, or the General Corporation Law. The departure from former section 194 to new section 206 was such as to clearly indicate the change intended, and this sweeping departure was just as clearly made to apply to the society which “ has issued ” as it was to the society which “ shall hereafter issue capital stock.” I cannot see how there can be the slightest question about the intent of section 206.
It is said, however, that the legislative intent to take away this right to condemnation does not appear for the reason that chapter 722 of the Laws of 1926 contains a saving clause (§4) which provides: “ This act shall not be deemed to abolish any corporation now legally existing or to affect the corporate status of any such corporation, but every such corporation is continued subject to the provisions of this act applicable thereto or to the provisions of such other law as may be applicable thereto.”
I give no such effect to the provisions of such saving clause. Chapter 722 of the Laws of 1926 was a general revision of the whole Membership Corporations Law, and section 4 applied to the whole amendatory act. It seems to me that section 4 cannot be deemed .to nullify the clearly expressed intent of new section 206. If any other meaning can be given to section 4, that meaning must be adopted. The two sections must be construed together and so. far as possible they must be harmonized. So construed the meaning of section 4 is clear. It merely preserves the corporate status of such corporations legally existing at the time but subject, however, “ to the provisions of this act applicable thereto or to the provisions of such other law as may be applicable thereto.” It is stated in the alternative. The disjunctive “ or ” is significant and leaves the section in perfect harmony with section 206. Moreover, I see a grave question of constitutionality involved, if we are to hold that agricultural societies existing at the time of the amendment of 1926 are to be allowed to continue to condemn even if they subsequently issue capital stock, but societies thereafter incorporated may not do so if they issue such stock. We should not attribute such an arbitrary and discriminatory intention to the Legislature unless the language clearly requires it.
I vote to reverse the order and to dismiss the proceeding on the ground that the plaintiff has no power to condemn.
Final order reversed on the law and facts, and matter remitted to Special Term for a hearing before new commissioners to be appointed, with costs to appellants to abide the event.