CHAPTER II LATER CHARTERS AND EARLY GENERAL LAWS General Characteristics. -The terms early" and "late," used with reference to railway charters, are relative in their significance; for a year which is early in the history of one state may be late in that of another. For instance, charters granted in the New England and Middle States between 1835 and 1840 may be characterized as later, while those granted in states like Wisconsin and Minnesota during those years would decidedly belong to the earlier charters of that section. The legislative history of railways in the various states of the Union is essentially similar, and as we observe the movements of this legislation from east to west we may notice that in turn each state goes through, in the main, all the experiences and stages of advancement of other states which preceded it in railway development. An examination of the contents of these charters, as one observes their march westward, clearly indicates the fact that the restrictions of the earlier types granted in the East are gradually made milder, if they are not altogether lost. Occasionally there is a reversion to type-a Western charter embodying all the salient restrictions and regulating features of the severest Eastern charters. The additional observation may be made that the maximum rate provisions, which are rather common in the earlier charters of the East and Middle West, are frequently embodied in later charters. Then, as time advances and the more modern phases of railroading make their appearance, clauses referring to consolidations, discriminations, and even long and short haul are occasionally inserted. Aside from the enumeration of names comprising the board of commissioners, which usually appears in the first or second section of the charter, no regular order is maintained. It is clear that states copied largely from one another, and, in the process of copying, different charter sections appear to have become badly mixed; and in numerous instances a considerable number, even a majority, of clauses incorporated in the more complete charter which served as the model are left out altogether. While large numbers of special charters were granted up to 1870, general laws relating to railways appeared early in the thirties, and in a few isolated cases even before that time. A custom which aided in bringing about the transition from special to general laws was the abbreviation of railway charters by reference to previously granted charters in the same or, in isolated cases, in other states. Under this custom the charter only contained a few purely individual and local specifica tions, with the additional blanket provision that the company thereby incorporated shall enjoy all the rights and privileges previously granted to another specified corporation. Thus, in New York numerous charters are abridged by reference to the Attica and Buffalo charter,1 granted in 1836. The same method was largely employed in the construction of charters in Maine, Virginia,2 Missouri, Minnesota, Tennessee,5 and other states. When, as was often the case, a considerable number of charters were abridged in the same state by reference to some one charter, an element of uniformity was introduced with almost as much efficiency as if general laws had been enacted. One of the peculiarities of railway legislation in all sections of the country is the granting of special laws after general laws had been enacted in the respective states. Indeed, it is not uncommon to find upon the statute books a comprehensive general law enacted on a certain day, and perhaps a special charter granted, if not on the same, then on immediately succeeding days. Large numbers of special charters were granted, completely ignoring in their provisions existing general laws. The Northern Pacific Franchise.— A late illustration of the organization of a railway company under special charter is afforded by the history of 1 Laws, 1836, p. 319. 2 Laws, 1839, ch. 107, p. 74, and charters granted subsequently. 8 Laws, 1837, p. 247. 4 Laws, 1857, ch. 53. 5 Laws, 1851-52, ch. 103, 192, and others. the Northern Pacific Railroad, the leading facts of which are set forth by the general counsel of that company in the preface to his compilation of the Northern Pacific charters. 66 PREFACE" "Soon after the institution of the foreclosure proceeding it was determined that it would be necessary to reorganize the Northern Pacific Railroad Company under a new charter, to be obtained either from Congress or from some one of the states. Congressional legislation was considered doubtful, and the reorganization committee early took steps to secure a charter for reorganization under a state law. "In all of the states in which any portion of the property is situated the granting of charters by special act is prohibited, and corporate organization can only be effected under general laws. Such a constitutional amendment had been adopted in Wisconsin in November, 1871, but the supreme court of Wisconsin had several times decided that the amendment was prospective in its operation, and left the legislature at liberty to amend special charters granted prior to the adoption of the constitutional amendment. "It was considered preferable to secure a special charter, which should be open from time to time to special amendment, and it was determined that the charter of the Superior and St. Croix Railroad Company (a Wisconsin corporation) would be the best adapted for the purpose. This charter was acquired by the purchase of all the stock of the company and was amended by special act (ch. 244, Laws of 1885) of the legislature of Wisconsin, as hereinafter set forth. "As the reorganized company was to acquire the vast properties of the Northern Pacific Railroad Company and to issue thereon a great amount of stock and bonds in order to carry out the plan of reorganization, it was thought prudent to leave unsettled no possible question, however technical, based upon non-user or upon any other ground, concerning the validity of the charter. To test the question the attorney-general of Wisconsin applied to the supreme court of that state for leave to file in the court, according to the practice thereof, a bill in the nature of a quo warranto to forfeit the franchise on the ground of non-user. The case was fully argued, and on the 19th day of June, 1896, the supreme court unanimously decided that the corporation was not dissolved by non-user, and that if any ground for forfeiting the charter had existed it was waived by chapter 244 of the Laws of 1895 amending the charter above referred to. So that before the purchase of the properties of the Northern Pacific Railroad Company and the increase of its capital stock and the provision for the issue of securities, the validity of the charter of the present Northern Pacific Railway Company (formerly Superior and St. Croix Railroad Company), by the |