Suit on a subscription to tbe capital stock of said company. Tbe pleadings were so framed as to present tbe question of tbe power of tbe corporation to consolidate witb another company, and at tbe same time retain tbe right to enforce tbe collection of said subscription, tbe subscriber never having consented to said consolidation. Judgment for plaintiff.
This corporation was organized under tbe general railroad . law, (1 R. S. 1852, p. 420,) tbe 37th section of wbieb is, that “ This act may be amended or repealed at tbe discretion of tbe Legislature.” Tbe articles of association were signed and the subscription made by the defendant on the 24th day of February, 1853. On tbe 11th of March, 1853, tbe consolidation was made witb tbe Four-Mile Valley Railroad Co., organized under tbe laws of tbe State of Ohio, to build and own a railroad from Cincinnati to Fort Wayne.
By tbe articles of association, tbe name adopted was that by which they now sue. The road was to commence at Fort *31Wayne and be constructed to the eastern line of the county of Wayne, pointing in the general direction of Cincinnati.
It is manifest that it was the purpose of the association to make a through connection by rail between the commercial points of Fort Wayne on the canal and Cincinnati on the Ohio river. This could only be done by some kind of arrangement between an Indiana and an Ohio road. "We believe there was no general statute in this State, at the time of defendant’s subscription, authorizing the consolidation of companies; that is, none that had been published. It is true, that on the 23d of February, 1853, such an act was passed and approved, and on the 4th of March following, an act explanatory thereof.
Were these acts such as the Legislature had the rightful authority to pass as amendments to the said general law of 1852, under the 37th section thereof? Or rather, in this instance, having been passed as general independent enactments, could they, under said section, be applied to said association previously formed ?
It is not necessary for us to decide the question whether said acts would apply in any and all consolidations that might have been attempted between various roads, or those having diverse interests. Ail we need and all we do decide is, that, in view of the purpose for which the association seems to have been organized, and that the consolidation was only carrying out that purpose, and not a fundamental change of the object contemplated, we are of opinion such action of the company did not exonorate the defendant from his undertaking. This is on the ground that it was such- an amendment as the defendant might have reasonably anticipated at the time he subscribed, even if that should be the very favorable rule (for defendant) that should govern. But see, as bearing upon these points, Peirce on R. R. Law, 93; 10 Barb., 260; 12 id., 156; 27 Ver., 420; 1 Kernan, 102; 4 id., 336; *3222 N. Y., 12; 14 Ill., 373; 23 Mo., 111; 30 Me., 594; 6 Cush., 424; 28 Conn., 289.
Wm. II. Combs, for the appellant. W. II. Withers, John Morris, and Charles Case, for the appellee. Per Curiam.The judgment is affirmed, with 1 per cent, damages and costs.