
    Sims v. Street Railroad Co.
    1. By the Revised Statutes, section 3248, the powers, business and property of a corporation having a capital stock, must be exercised, conducted and controlled by its board of directors, who are duly elected and qualified ; and a court of equity will not, on the application of a stockholder, interfere with its management and control of the corporate business, while acting within the scope of its authority, unless they are guilty of a breach of trust to the injury of such stockholder.
    2. This principle is applicable to the action of the board of directors, in receiving subscriptions for that portion of the authorized capital not taken before the corporation was organized, where it will promote the objects of tlife corporation. A subscription for such stock made by one member of the board, with the consent of the others, and payment of the par value thereof, when the transaction is free from fraud, and is beneficial to the corporation, will not be set aside at the instance of a stockholder, when no action has been taken to withhold such slock from subscription or sale.
    3. The exercise, in good faith, by the council of a city or village, of the discretion vested in it by section 2505 Revised Statutes, as corrected, (77 Ohio L. 42), to grant permission to any corporation, company or individual, owning or having the right to construct a street railroad, to extend its track, where the council may deem such extension beneficial to the public, will not be interfered with by the court.
    4. A street railroad corporation, which owns or has the right to construct a street railroad within a city or village, may, with the permission of the council of such city or village duly granted, extend its track beyond the termini named in the certificate of incorporation, subject to the provisions of section 2505 of the Revised Statutes as corrected (77 Ohio L. 42).
    5. The corporate power to make such an extension, is conferred by statutes under which the company is incorporated and is acting. The ordinance granting permission to extend the track, is not an act conferring corporate powers. It is merely a permit to the corporation to exercise the corporate powers conferred by general law, therefore such an ordinance is not an act conferring corporate powers, which is prohibited by article 13, section 1, of the Constitution of Ohio.
    Appeal. Reserved in the District Court of Cuyahoga County.
    The Brooklyn Street Railroad Company was incorporated August 25, 1869, under the act of April 10, 1861 (58 O. L. 66), and the amendatory and supplementary acts. The authorized capital stock was $30,000. It was organized October 5, 1869, with a board of five directors. Its purpose was, as found by the court, to construct a street railroad from a point in the village of Brooklyn, a suburb of the city of Cleveland, through a portion of Brooklyn township, into said city, along Pearl street to its intersection with Lorain street, where it would meet and connect with the West Side Street Railroad, for the carriage of passengers from points along its line to Superior street and the public square in said city, which was the ultimate destination of most of the passengers coming into the city. This was to be done by carrying them over its own line to its northern termination, where it met the West Side road; “thence by way of the West Side Street Railroad or otherwise to Superior street and the public square, which are the ultimate destination of most of the passengers on said road.”
    The road was completed to its connection with the West Side road prior to December 1, 1870, and until November 1, 1880, it was operated under a lease, by the West Side Street Railroad Company, as a part of its continuous line to the village of Brooklyn. At the expiration of this lease, the Brooklyn Street Railroad Company resumed possession, and have since operated the same.
    At the time the road was completed in 1870, about $21,000 of the capital stock had been subscribed and paid in. Repeated efforts had from time to time been made by the directors, to place the residue of this stock, prior to 1877, but without success except in small amounts, so that in January, 1881, there remained $8,250 of the stock untaken. At this time the matters in controversy arose. The board of directors, then, as theretofore, consisted of five stockholders, one of whom, Tom L. Johnson, was president. They decided that it was for the interest of the company to dispose of this residue of the capital stock, and to extend its line of road from its existing northern terminus, along Pearl street, over the viaduct to Superior street and the public square. They were proceeding to take the necessary steps to that end, when the plaintiffs, as stockholders, commenced this action to enjoin them, and also to enjoin the city of Cleveland, also a defendant, from passing an ordinance granting permission for such an extension. The prayer of the petition is, to enjoin the board from issuing certificates of stock for this $8,250, to said Johnson, on the ground that the action of the board, in allowing him to subscribe and pay for this stock, was in fraud of the rights of the stockholders; also to enjoin the board from taking any steps, or instituting any proceedings, to obtain the right to use the track of the West Side Street Railroad Company, from Peai’l street to a connection with Superior street and the public square, and also to enjoin the city of Cleveland from passing an ordinance granting permission for such an extension. • The grounds alleged for this relief arc, that it would injuriously affect the interest of the stockholders, was a fraudulent plot or scheme to promote the interest of said Johnson, and was without authority of law. Issue was joined upon these allegations, and upon appeal to the district court a special finding of fact was made, and the case was reserved for decision to this court.
    From this finding and from the pleadings, it appears that all efforts to place this unsubscribed stock had proved unsuccessful, that the company was largely in debt, and was, by the action of the West Side Street Railroad, cut off from a connection therewith at Lorain street over its track to the center of the city. That at a board meeting held January 15, 1881, at.which all the members, except one, was present, said Johnson proposed to take this $8,250 of unsubscribed stock at par, to be paid for by him, partly in a debt owing to him by the company, partly in property, and partly in his note. This offer was accepted by the other three directors present, he subscribed and paid for the same, as proposed, and shortly thereafter paid his note in cash. The findings of the court negatives all allegations of fraud in this transaction, and finds that it was in good faith; that the consideration received was of the full value of the par amount of' said stock, and that the property and money received was necessary for the uses of the company. It further finds, that the right of the company, if it can be lawfully acquired, to run its cars to Superior street and the public square, on the track of the west side road from Lorain street to the viaduct, and beyond, will be highly advantageous to the Brooklyn street company, and to the public, and that there is no practicable route for such an extension, except on and along said West Side track.
    From the pleadings it appears, that the company had taken steps to authorizing such an extension, had acquired the necessary consent of property owners, and had petitioned the council for permission to make the same, by using the the track of the West Side company for that purpose. It further appears that two ordinances were pending before the city council, in each of which it was proposed to grant such permission, on condition only that the right to use the track of the West Side Street Railroad Company should first bo acquired by consent of said corporation or by lawful appropriation.
    
      E. Sowers and R. P. Banney, for plaintiff:
    Corporations have only such powers as the act creating them confers. Straus v. Insurance Co., 5 Ohio St. 59; 36 Ohio St. 326.
    1. We insist that all street railroad corporations organized after April 10, 1861, and before the late revision, were organized under the act of April 10, 1861, and the acts amendatory and supplementary thereto, and that the act of May -1, 1852, relating to railroad corporations, has since then had no application to street railroads except as to those sections thereof which by express reference are made part of the law relating to street railroads. Inasmuch as the law referred to has prescribed what shall be done in order that cars may be run continuously over tracks of street railroads situated as these tracks are, no other method than that prescribed can be pursued. If the law contemplated the acquiring the right in such case by a proceeding to appropriate a right of way, or to acquire it by contract, a grant of power sufficient to attain this end would have been given. That it prescribes one method in sucli a case, and makes no provision for any other, is a clear indication that the method provided is the only one that exists. We conclude, then, that before' the revision the Brooklyn Street Railroad Company had no legal right to operate a street railroad beyond the places fixed as its termini in its certificate of incorporation. The Revised Statutes make no change. The sections of the Revised Statutes applicable to street railroads are sections 2501 to 2505 inclusive, and sections 3437 to 3443 inclusive. The subdivisions relating to consolidation, sections 3379 and 3392, made so by reference thereto, and chapter 1, sections 3232 to 3269 inclusive. These sections embrace the whole body of the law relating to street railroads, as it existed before the late revision ; they now embrace, with the amendment of section 2505 (77 Ohio L. 43), the whole of the law of the state respecting street railroads, now in force. Has the Brooklyn Street Railroad Company the corporate power to acquire the right of way over the track of the West Side Street Railroad Company by appropriation, or by contract ? Can it acquire this right in either of these ways ? We say, no. The right of eminent domain is a sovereign power, and is acquired only by express grant. Has this power been granted ? We think it has been granted in a very limited degree, and for clearly defined purposes. That the grant of the power of eminent domain to a corporation is to be strictly construed apj>ears from the following authorities: Moore v. Little Miami R. R. Co., 17 Ohio R. 350, 351; Railway Co. v. Daniels, 16 Ohio St. 396.
    2. The directors have no right to engage in a new enterprise or authority to bind the dissenting stockholders. To do so would impair the obligation of a contract and vested right of property. Const. art. 11, § 28; Ireland v. Turnpike Co., 19 Ohio St. 369 ; Keen v. Johnson, 9 N. J. Eq. 401; Zabriskie v. Railway Co., 18 N. J. Eq. 178; 11 Ga. 438; 31 Pa. St. 317; 10 Ohio St. 57.
    
      3. We claim that the council of the city of Cleveland cannot enlarge the corporate powers of this street railway company, nor impose new and additional burdens in the nature of corporate rights, privileges and duties upon it.
    4. The directors had no right to sell to one of their own number the untaken stock. It is the right and privilege of the stockholders. Field on Corp. §§ 109, 155; Gray v. Bank, 3 Mass. 364; State v. Bank, 10 Ohio, 92; Atkins v. Albree, 12 Allen, 359; State v. Page, 48 Vt. 266; Railway Co. v. Allerton, 18 Wall. 233; Eidman v. Bowman, 58 Ill. 444; 18 Ohio St. 183; 36 Ind. 60; 4 How. 503; Railway Co. v. Blaikie, 1 McQueen, 461; Coal Co. v. Coal Co., 16 Md. 456; 30 Barb. 553.
    That a shareholder may bring an action to restrain a corporation from acts which are in violation of its original purpose and object, is well settled. Dodge v. Wooley, 18 How. 331, 336, 341-343; 22 N. Y. 258-9, 275, 291-297; Bradley v. Ballard, 55 Ill. 413; 6 Eng. L. & Eq. 106, 107; 13 Eng. L. & Eq. 506 ; 9 N. J. Eq. 401; Stevens v. Rutland & B. R. R. Co., 29 Vt. 545.
    We would call attention to the fact that one of the declared purposes of the corporators in building the Brooklyn Street Railroad was to connect at its northern- terminus with the West Side Street Railroad or some other street railroad on Lo rain street. We submit that this is a clear indication that tha original corporators never designed to operate a street railroad beyond the northern terminus of the Brooklyn Street Railroad We also insist that the increase of population along the line of its road, and the building of the viaduct, can have no effect on the corporate powers of the company. We suggest that the finding of the court that it would be highly advantageous to the company and the public served by it to extend its operations, is not relevant to any issue in the case, and is entitled to no weight in determining the corporate powers of the company upon a question arising upon the contract between the company and its stockholders.
    
      Adams & Russell and C. L. Holtze, for defendant:
    
      The directors had a right to sell the untaken stock to Mr. Johnson. Rev. Stat. § 3248; 1 Disney, 84; 3 Fairfield (Me.), 354; 3 Vt. 159 ; 42 Vt. 128 ; Field on Corp. §§ 237, 241, 242. Payments for stock-subscriptions may be made in labor, materials furnished, chocks, promissory notes, bonds and mortgages, provided such payments are the equivalents in value of cash for the stock at par. Ridgefield & New York R. R. Co. v. Beach, 43 Con. 86 ; Am. Railway Rep. 18, with collection of authorities in note, pages 44,45 ; 1 Disney, 84; and the above case of Beach v. Smith, 30 N. Y. 116; 6 Jones Law, 82; 41 Penn. 54; 30 Barb. 246; 11 Wis. 306-334; 16 Ind. 46; 35 Ala. 33 ; 27 Penn. 413 ; 28 Penn. 31S ; 21 Vt. 30 ; 45 Cal. 306 ; 33 Ind. 490 ; 29 Conn. 84; 2 Met. (Ky.) 219; 31 Ill. 490 ; 21 Wend. 211.
    It is denied by certain of its stockholders that the Brooklyn ‘Street Railroad Company has the corporate capacity to become vested in any manner with the right to extend the running of its ears, beyond the corner of Lorain and Pearl Streets; because it is alleged, that was its terminus as fixed in its certificate of incorporation, at a time when the law of the state applicable to and controlling such matters (statute of 1861, 58 Ohio L. 66,) provided for just such a fixing of terminus at a fixed and designated mathematical point, and did not provide for any extension beyond such designated point. And this may be admitted at. true.
    hTow let us suppose the conclusion follows and is true, that the Bi ooklyn Street Railroad Company cannot now lawfully acquire the right to extend the running of its cars ; and what is the situation'(
    
    As the Riooklyn Company cannot extend the running of its cars, neither any person, partnership, company nor corporation other than it can accomplish the extension, for the grant of power on which we rely to sustain our right to lawfully acquire the right to extend (§ 2505, R. S. as amended, 77 Ohio L. 43), expressly gives to corporations owning street railroads the same rights and powers as to extensions as natural persons or co-partnerships in like circumstances can exercise.
    Hence '.upon -our supposition we are brought to the conclusion that the "West Side Street Railroad Company, which is owned by the principal plaintiffs in this suit, owns and holds as against the Brooklyn Company and the world an exclusive permanent monopoly of the street-car carrying trade in Pearl street, from Lorain street to the viaduct, upon the viaduct, and on Superior street to the public square, so far as all passengers are concerned, whose route to or fro leads into the territory traversed by the present track of the Brooklyn road, because Pearl street, between Lorain and the viaduct, is the only practicable street-car approach from Lorain street corner to the viaduct.
    The question whether the defendant corporation can lawfully acquire the right to run its carsbeyond its originally designated terminus, must be decided by the interpretation and application of the statutes. Rev. Stats. §§ 2505, 3437, 3438, 3439, 3440, 3443.
    Our contention is that these statutes, and inore especially the first part of section 3438, Revised Statutes, clearly give to all street railroad corporations of Ohio, the right lawfully to extend their tracks and operation, upon the terms and conditions imposed, when the municipal council concerned shall, by ordinance, confer such right.
    We contend that it is not, and ought not to be, in the legal power of a minority of its stockholders, interested tenfold in its rival, to prevent it from exercising its franchise to extend its operations within the precise scope and line of the purpose for which it was ineor]3orated.
    As supporting this contention, we cite the court to Sprague v. Illinois River R. R. Co., 19 Ill. 174; Penn. & Ohio Canal Co. v. Webb, 9 Ohio, 136; Stewart v. The Little Miami R. R. Co., 14 Ohio, 353.
    That the franchise or property of one railroad company may be used by another, in all cases where the property of an individual might be, see 35 Mich. 265; 15 Am. Railway Rep. 317; and authorities there cited; 19 Am. Law Reg. 765 ; 72 N. Y. 330 ; 5 C. E. Gr. (N. J.) 66 ; 62 N. Y. 183, 184; 63 N. Y. 326.
   Johnson, J.

The plaintiffs, as stockholders in the Brooklyn Street Eailroad Company, seek equitable relief against the action of its board of directors. They ask : 1. To enjoin the board from issuing to defendant Johnson certificates of stock for $8,250, subscribed and paid for, and to declare said contract of subscription void.

To enjoin the city of Cleveland from passing an ordinance granting to said company permission to use the track of the "West Side Street Eailroad to extend its line to the business center of the city.

To enjoin the directors from taking any steps, or instituting any proceedings to obtain the right to such use, or to make such extension.

Are the plaintiffs entitled to an injunction against the issue of this stock, and to have the contract of subscription therefor declared void ?

The authorized capital was $30,000, of which all had been subscribed and paid for except $8,250. Eepeated efforts had been made by the board to place this stock, but with little success. The books for the subscription of stock had been formally opened by the incorporators and most of the stock had been subscribed and paid for after the organization of the company, and while these books were in the possession and under the control of the directors. They had never been closed by any action of the board, or of the stockholders.

The financial condition of the company was such, that additional capital was necessary. The directors allowed defendant Johnson to subscribe and pay for this untaken stock, at its par value. It is not claimed that it was worth more than par. Indeed, from the allegations of the petition it was worth much less.

The consideration received was of the full value of said stock. The property and money received was necessary and, proper for the use of the company. In short, the transaction was bona fide and beneficial to the company. The contention is, that it was unauthorized, and therefore, that the contract was void. In this we do not concur.

This was not an increase of capital stock, beyond the amount authorized by the certificate of incorporation, hence the numerous authorities cited as to the power of the board to increase the capital stock, or to dispose of increased capital, do not apply. This stock was part of the authorized capital, which each subscriber for stock and each holder of stock had expressly agreed should be taken at par, at an open public subscription. Each stockholder took his stock, knowing that others, to the full amount of the authorized capital, could be associated with him in the business of the company.

Before the organization the incorporators are authorized by statute, to open books, receive subscriptions and the first payment thereon, and give notice for the election of directors. They are empowered to place all the authorized capital. After the directors are elected and qualified, “the corporate powers, business and property,” of the corporation, “ must be exercised, conducted and controlled by the board of directors (Rev. Stafc. 3248). What power and control the stockholders, in their capacity as such, in a stockholders’ meeting duly held, may exercise over the business of the corporation, and over tbe board of directors, we need not determine, as, in the case a,t bar, they have taken no action.

The books for tbe subscription of stock were opened by the corporators. Neither stockholders or directors had ordered them closed. If the stockholders had the power to dispose of this unsubscribed stock, they never sought to exercise it.

In the absence of such action of the stockholders as would control the directors (if any such could be taken), the right to place the unsubscribed stock vested in the board of directors. They represented the corporation in all its business affairs, and were authorized to transact all the corporate business within the scope of its authority. In the exercise of these powers, the directors are at all times subject to the equity jurisdiction of the courts, on the application of a stockholder or a minority of stockholders, to restrain all breaches of trust, or the exercise of powers not delegated to them, to the 'injury of stockholders.

If, however, the directors, who are presumed to represent the will of the majority, act within the scope of their powers, their will must govern in the absence of fraud or breach of trust. Dodge v. Woolsey, 18 How. U. S. 342 ; Ware v. Grand Junction Co., 2 Russ. & M. 470 ; Gifford, v. N. J. R. Co., 10 N. J. Eq. 171; Stevens v. Rutland & B. R. R. Co., 29 Vt. 545 ; Bissell v. M. S. & N. J. R. R. Co., 22 N. Y. 258; Kean v. Johnson, 1 Stock. Ch. 401; Field on Corporations, §§ 141, 142.

Applying these principles to the case before us, we hold : 1st. That the act of disposing of this stock at par, for a full and valuable consideration, zvas not in excess of the powers intrusted to the directors: and 2d. That the transaction being free from fraud and beneficial to the company, it was not such an abuse of the trust reposed in the board as warrants the •interference of the chancellor’.

The objection made, that Johnson was the president of the board, and that his associates could not dispose of this stock, is not well taken. The majority of the board, excluding Johnson, agreed to this contract. At most it was voidable, and not void. If in all respects fair and beneficial a court of of equity will not avoid it. It being within the scope of the powers vested in the directors, in the absence of any controlling action by the stockholders, the contract to dispose of this stock to a director or stockholder, if made in good faith, and if beneficial to the company, will not be set aside at the instance of a minority of stockholders. In such a case there is not such an abuse of corporate power, nor exercise of powers not granted, as will authorize the intervention of the chancellor. Smith v. Skeary, 47 Conn. 47.

II. As to the prayer for an injunction against the city of Cleveland.

All the city is asked to do, or proposes to do, is to grant permission to the Brooklyn Street Railroad Company the privilege of occupying certain streets, and to use the track of another street railroad company for its contemplated extension. The city does not propose, if it has the power, to invade or interfere with the private rights of the West Side Street Railroad Company to the exclusive use of its track. The permission to occupy the street and to use this track, is upon the express condition that the company acquire of the West Side Cornpany by mutual consent or by appropriation, whatever property rights the "West Side Company have therein. The statute vests iu the city council the power to grant the use of the streets to any street railroad company, if beneficial to the public. A court of equity will not interfere with the exercise of this discretionary power in the absence of facts showing fraud or bad faith. State ex rel. v. Gas Co., 37 Ohio St. 45.

III. Should the company be restrained from taking any steps, or instituting any proceedings to acquire the right to extend its lines and use the track of the West Side Company for that purpose 2

If it can be lawfully done the finding of the court is, that it will be highly beneficial to the company. The right to the relief prayed for, depends, therefore, on the underlyingquestion, has the corporation the power to make the proposed extension % All questions of fraud, or of injury to the stockholders, are eliminated.

This corporation was incorporated and organized under the act of April 10, 1861 (58 Ohio L. 66), and acts amendatory and supplementary thereto. The certificate was dated August 25, 1869, and the organization was perfected by the election of directors October 5,1869.

Section 1 of the act of 1861 prescribes the minimum number of natural persons required to form a corporation, and describes the manner of executing the certificate, and states what it shall contain. It must specify, (1) “ The name assumed by such company ... (2) The name of the street, alley or avenue, with a description of the locality tihereon of each terminus of said road, and the names of the streets, alleys and avenues or other public grounds through which such road shall pass.”

Section 2, among other things, provides “ that- when the foregoing provisions have been complied with, . . . such corporations shall be authorized to construct, operate and maintain a street railroad ... on the streets, alleys or avenues . . . specified in the certificate . . . between the points of termini named in the certificate, and transport thereon passengers and their packages and baggage.”

Section 5 required the consent of the city council to be first obtained before a street railroad could be commenced or constructed. This section was repealed by the act of May 27, 1866 (63 O. L. 55; S. & S. 137, 138), and sections 1 and 2 of the latter act were substituted. Section 1 of this act provided that no street railroad should be constructed or commenced until the consent of the council be obtained, and authorized the council to agree upon the terms and conditions upon which the street should be occupied.

Section 2 requires the council to prescribe by ordinance the terms and conditions upon which the streets and avenues of the city may be occupied by street railroads.

Up to this time, there was no authority vested in the city council to allow street railroad companies to extend their tracks beyond the limits named in their certificate of incorporation.

May 7, 1869, an act supplementary to the act of March 27, 1866, was passed, which in terms authorized such an extension (66 0. L. 140). It reads as follows: “It shall be lawful for the council of any city or incorporated village to grant permission by ordinance to any person or company, owning, or having the right to construct, any street railroad, to extend tliew track on any street or streets where, the said council shall deem such'extension beneficial to the public. And when any such extension shall be made, the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads, by consolidation, under existing laws, shall hot be increased by such extension or consolidation.” This power of extension under this act was in addition to the power to consolidate under section 4 of the act of 1861. This right of extension was, by the act of April 10, 1867 (64 O. L. 122; S. & S. 138), so enlarged as to provide that thereafter any road constructed in a city or village, may be extended without the limits thereof, along the public roads, provided the proper authorities consent, &c.

The certificate of incorporation was taken out after the supplementary act of May 7, 1869, was in force. That act'was as much the law governing the corporation as the act of 1861. When this company became incorporated in August, 1869, it was empowered, to exercise all tbe powers and enjoy tlie franchises granted by the act of 1861, and by the amendatory act of 18G6, and also by the act supplementary thereto, of 1869. The franchises granted by this supplementary act are as much a part of its chartered powers and privileges as those embraced in the original act. Its language is unmistakable. It shall be lawful for the council to grant permission by ordinance, to any person or company owning or having the right to construct any street railroad, to extend their track,” &c.

Section 5 of the act of 1861, and sections 1 and 2, of the act of 1866, did not authorize the council to permit an extension, but only to permit the use of its streets. As sections 1 and 2 of the act of 1861 limited the operations of the company to the termini named in the charter, so the permission granted to use the streets of the town or city, was by necessary implication limited to the same streets prior to the supplementary act of 1869. Sections 1 and 2 of the act of 1866 did not confer corporate power, but only authorized the council to grant permission to exercise the corporate powers conferred by sections 1 and 2 of the act of 1861, to wit, the right, with such permission, “ to construct, operate and maintain a street railroad, .... between the points of termini named in the certificate.”

The powers and franchises acquired by a certificate of incorporation in August, 1889, embraced not only those conferred by the acts of 1861 and 1866, but the additional franchise, if the corporation owned or had acquired the right to construct a street railroad, of extending its track, subject to the provisions of sections 4 and 5 of the act of 1866.

It is contended that this supplementary act of 1869 is to be construed as authorizing such permission within the termini named in the certificate, and as limiting the corporation to the streets named in its certificate. This view is untenable. Sections 1 and 2 of the act of 1866 authorized permission in such cases. The supplementary act of 1869 was unnecessary for that purpose, and in that view a work of supererogation. To give it any force or effect we must regard it as giving to such corporations, with the permission of the proper authorities, the right to extend “ their track,” beyond the termini named in the certificate of incorporation, if the company already owns a road or has acquired the right to construct one.

It follows, that such an extension is no violation of the contract with stockholders, as among its powers and franchises to which they agreed is that of extending its track. Sprague v. I. R. R. Co., 19 Ill. 174.

Again, it is said the act of 1869, so construed, is in violation of art. 13, § 1, of the constitution. “ The general assembly shall pass no special act conferring corporate power.” It is said that, if the legislature cannot by special act confer corporate powers, it cannot vest in city councils the power by ordinance to do the same thing.

The vice of this argument is the assumption that an ordinance granting permission for such an extension, confers corporate powers. It only permits the exercise of such powers as are conferred by the statute. If such an ordinance confers corporate powers, then also does a like ordinance under sections 1 and 2 of the act of 1866, which provide that no sti’eet raih’oad shall be constructed in any street, withoxit permission first being granted.

Neither statute authorizes the city council to confer corporate power. They vest in the city the right to grant or refuse to street railroad corporations permission to construct or extend their tracks, under the corporate power acquix-ed by their certificate of incorporation. For obvious reasoxxs we have confined this discussion to the acts under which this company wras incorporated. It is now governed by the provisions of the Revised Statutes. These will be found in sections 2601 to 2506, and sections 3437 to 3443.

So far as the questions involved in this case are concerned, these provisions are in substance and legal effect the same as the original acts.

~We conclude, that the Brooklyn Street Railroad Company, being the owner of a sti’eet railroad, has the corporate power to extend its track, with the permission of the city coxxxrcil. As the exercise of this power1, if it can be legally done as contemplated, will be highly beneficial to the corporation, there is no ground for the interference of a court of equity at the instance of stockholders.

It is said, that one street railroad corporation cannot condemn a right to use in common the track of another like corporation. This question is not properly before ns. It can only arise when the parties fail to agree and when proceedings are instituted for that purpose. It will then be a question between the two corporations. If such right does exist, the plaintiffs cannot complain, as the court finds its exercise will be highly beneficial to them. If it does not exist, the West Side Street Railroad Company can have ample protection, without the aid of the plaintiffs.

Judgment accordingly.  