dissenting. I cannot concur in the opinion of the majority of the court, in this cause. The plea alleges that defendant subscribed ten shares to plaintiff’s road, under a charter for its construction from Terre Haute in Indiana to Alton in Illinois, and that after the road was constructed, the plaintiff purchased a controlling interest in the Belleville and Illinoistown Railroad Company, and by virtue of the charter of that company, constructed a railroad from a point four miles east of Alton, to Illinoistown, a distance of twenty-five miles from Alton, and that by this suit the money subscribed by defendant is sought to be applied to this last named road, without his consent. This plea, the truth of which is admitted by the demurrer, raises the question of whether the change of the charter of the company, was such, when acted upon by it, as to absolve the defendant from paying his subscription.
Any fundamental change in the charter of such a company, releases subscribers for shares from payment of the subscription. This rule is too familiar and firmly established to require a review of, or reference to adjudged cases. But the alteration, either in the charter of the company, or the line of the road, to exonerate the subscriber for stock, must be one that removes the prevailing motive for the subscription, or else materially and fundamentally alters the responsibilities and duties of the company, in a manner not provided for or contemplated by either the charter itself or the general 'laws of the State. These are principles which it is believed none will controvert, and if this case falls within their application, the defendant is legally discharged from payment of his subscription. The original charter of this company was for the construction of a road from Terre Haute in the State of Indiana, to Alton in this State, and in none of its provisions do we find any authority to purchase the Belleville and Illinoistown road, or to construct this branch to Illinoistown. No such authority is either expressly or impliedly given, and its existence depends upon subsequent enactment. And when this subscription was made, no such powers could have been exercised; and they were objects not in the contemplation of the legislature, the directors or subscribers, when the charter was granted, and the company organized. The appropriation of the money to be raised on this subscription, at the time it was made, was not intended to be appropriated to any other purpose than the construction of a road between the points designated in the charter, and that was the prevailing motive which entered into and formed the design of the subscriptions. And this entered into and formed a part of the contract between the company and the subscribers for its stock. And having entered into the contract and become a part of it, neither the legislature or the directors had any power to change the terms or obligations of this contract, by authorizing the money to be perverted to the purchase or construction of other roads. By his subscription this party agreed to pay the money, and the company agreed to apply it, in the construction of a road between the points named in the charter, and there is no power to apply it to other purposes or on other roads, without his consent ; and that is denied by this plea. If the legislature could authorize a change in this contract, so as to authorize the application of this money to the purchase of the Belleville and Illinoistown road, no reason is perceived why they might not authorize its application to the purchase of any other road, however remote. Or if they may authorize the construction of a branch to Illinoistown, that they may not authorize the construction of a branch to Galena or to Cairo, and apply this money for the purpose. It is no answer to say that this stock is more valuable, since it is not what defendant agreed to receive for his money, and he alone has a right to determine whether it best promotes his interest. Neither the legislature or directors have a right to determine this for him. This change is not a mere change of location, still maintaining its points of terminus according to the original design, but is superadding other roads leading to other points of termination, and I think the alteration of the charter removes the prevailing motive that induced the subscription, and changes essentially and materially the terminus of the road. And that the defendant should be discharged from the payment of this subscription, and that the judgment of the Circuit Court should be affirmed.