If the defendant in Union Locks & Canal v. Towne had paid his share of the capital before the passage of the Act of 1809, his rights would have required some other remedy than a defence in that suit.[1]His agents could gain no legal advantage over him by postponing the enlargements till he paid his slhare. In the absence of other adequate remedy, his rights could be maintained by writ of mandamus, or other process from the common-law jurisdiction that superintends all civil corporations.[2]
If the works of the Union Locks & Canal had been constructed within the bounds of the charter, and the fact had then been found that the investment would be wholly lost unless they opened com- munication with the Middlesex Canal by locking Cromwell's Falls, or that the extension was necessary to accomplish the purposes of Towne's contract, the question might have arisen whether, on that point and to that extent, the case came within the implied power of doing what was necessary for carrying those purposes into effect.
Neither in that case nor in this was a legislative reservation of a power of altering and repealing the original legislative grant necessary to eniable the Senate and House to make an additionial grant of corporate power which the grantees could accept or refuse to accept. The meaning of such a reservation in a charter is an undisputed historic fact. Its only purpose and effect in the charter of the Northern Railroad is to enable the legislative grantors to revoke, wholly or partially, conditionally or unconditionally, their grant of legal rights to that company; that is, to alter the grant in some other way than giving them more rights which they can accept or reject. The reservation enables the Legislature to exercise the legislative power of revocation without the consent of the stockholders, and against their unanimous opposition. All legislative power except that of revocation can be exercised without the reservation. By New Hampshire law the charter being, on the part of the State, a repealable statute, and not a contract, the reservation is not necessary for any purpose.[3]By federal law, as construed by the federal court, it is necessary for the purpose of retaining the power of total and partial repeal. So
