The case, upon special demurrer to the declaration, presents only the substantial and technical sufficiency of the averments on it, to maintain this action. Of these we can entertain no doubt, upon the authority of adjudged cases in England and the United States, as well as our own courts.
The first objection is to the inconsistency in the averments, that acts of Feb. 1849 and Feb. 1851, were passed and had become laws before the subscription of defendant, and the organization of the company in 1850. If the averment is to be literally taken in its three dates, it will be rejected as absurd, and surplusage as to the priority of 1851 to 1850. It can work no prejudice to defendant, as it shows on its face, that all objections he has any right to make to the payment of his subscription, by reason of the amendatory act, are still open to him, notwithstanding the averment in this particular.
I need not pursue the special causes, nor the order of their assignment. The important ones will be noticed in substance and answered.
A subscriber’s agreement for the formation of a company, with the view of applying for a charter to build a railroad, was held to be enforcible, by the company, after organization under the charter; Midland Great Western Railway Company v. Gordon, 16 Mees, and Welsh. R. 804; and this too, where the agreement was for a railway only, and the charter authorized a railroad for part of the line, and the purchase of a canal for the remainder. This same principle had, in effect, been laid down, in the refusal to allow additional pleas to be filed, in London and Brighton Railway Company v. Wilson, 6 Bingh. N. C. 135, in respect to changes and deviations from the line adopted, but essentially changing the character of the company or enterprise, in which they proposed to, and had embarked. It has been so laid down, and these authorities approved, in Barret v. The Alton and Sangamon Railroad Company, 13 Ill. R. 506.
The principle is sanctioned in The Pennsylvania and Ohio Canal Company v. Webb, 9 Ohio R. 139; Clark v. Monongahela Navigation Company, 10 Watts R. 364; Gray v. Monongahela Navigation Company, 2 Watts and Serg. R. 159. And they show also, that subsequent amendatory acts may remedy omissions to comply strictly with the provisions of the charter, and that additional powers and privileges, conferred by subsequent amendatory acts, do not nullify the contracts and obligations of the stockholders to the company, or among themselves. Subsequent amendatory acts in this case, simply confer additional powers and privileges, if accepted by the company, by enlarging their capital, the borrowing money, mortgaging their road and property to secure it, extending the main line of the road, the building of branches, altering the line, and in adding facilities for crossing the Illinois and Mississippi rivers by ferries, &c., and is in no sense a change of the character of this enterprise, which still remains that for building and operating a railroad, with enlarged capacities and privileges, which may be highly promotive of its welfare and success, for anything apparent on this record. Nor does it appear that the company have accepted these powers and privileges, or propose to exercise them.
This subscription is enforcible at the common law, and the remedy is not in the least impaired by the power of forfeiture, conferred in the 6th section of the charter, for non-payment. (Acts 1849, p. 101.)
This is fully settled in Klein v. The Alton and Sangamon Railroad Company, 13 Ill. R. 514; Ryder v. Same, id. 516; Hartford and New Haven Railroad Company v. Kennedy, 12 Conn. R. 507, in which last this subject is fully and ably discussed, and shown that as a general proposition, the principle is not sustainable as laid down in Andover and Medford Turnpike Corporation v. Gould, 6 Mass. R. 40, and followed in 7 Mass. R. 102; 8 id. 138; 10 id. 384; 14 id. 286; 16 id. 94; 6 Pick R. 23-45; 10 id. 371; 14 id. 483; in Maine, 3 Fairfield R. 588; and in New Hampshire, 2 New Hamp. R. 380. And this was reaffirmed in Danbury and Norwalk Railroad Company v. Wilson, 22 Conn. R. 447, and we think sustained by reason, as well the decision of this court, in the above case, as in the recent case of Cross v. The Pinckneyville Mill Company, 17 Ill. R. 54.
Due notice of the assessments is averred; the character of the notice, or time and mode of giving it, need not be averred, but will become the subject of proof, when put in issue by plea.
The power to organize upon a subscription of §100,000, is expressly authorized by an amendment to the charter, and that is sufficient, for all the purposes of this trial, as if contained in the original charter. 2 Watts and Serg. R. 159 ; 10 Watts R. 364.
The declaration shows good cause of action against defendant, and the demurrer should have been overruled.
Judgment reversed and cause remanded.
Judgment reversed.