ject to an agreement for the use of its poles by other corporations upon a consideration of payment therefor, coupled with a condition for arbitration, and, in case of failure to agree, the amount of compensation to be determined by the city electrician, such company is obligated thereby.31 So a street railway franchise may be made subject to a condition that efficient provisions for the compulsory arbitration of all disputes concerning any matter of employment or wages between the company and its employees shall be embodied in a grant of a franchise.32 And the legislature may require that the grant of a franchise for the use of streets shall depend upon the consent of a majority of the voters at a general or special election.33 And a city may reserve a right to purchase the privileges, property or works of a corporation upon conditions or at the termination of a certain period of time.34

§ 348. Conditions-Acceptance. It requires the acceptance of the charter to create a corporate body, for the government cannot compel persons to become an incorporated body without their consent; 85 and such acceptance is necessary to bind the stockholders.36 But in case of a grant by a city or Percentage, how graduated. Pay- Consumers' Gas Trust Co., 144 Fed. ment by railroad company to State 640; Stein v. McGrath, 128 Ala. 175, has reference to time of completion 30 So. 792. Examine Blair v. City of certain number of miles of own of Chicago, 201 U. S. 400, 50 L. ed. line. State v. Northern Pac. R. Co., 801, 26 Sup. Ct. 427. 36 Minn. 207, 30 N. W. 663.

31 Montgomery Light & Water Co. v. Citizens' Light, Heat & Power Co. (Ala., 1906), 40 So. 981. See Kuhn v. Knight, 101 N. Y. Supp. 1, 115 App. Div. 837.

32 Wood v. City of Seattle, 23 Wash 1, 62 Pac. 135, 52 L. R. A. 369.

33 Hanson V. Wm. A. Hunter Electric Light Co. (Iowa), 48 N. W. 1005, 34 Am. & Eng. Corp. Cas. 83, 10 Ry. & Corp. L. J. 103. Question also whether city ordinance was within the statute.

34 See Indianapolis, City of, v.

35 Franklin Bridge Co. v. Young Wood, 14 Ga. 80, 86, per Lumpkin, J.; Chicago Teleph. Co. v. Northwestern Teleph. Co., 199 Ill. 324, 65 N. E. 329, 8 Am. Elec. Cas. 81, aff'g 100 Ill. App. 57; Quinlan v. Houston & T. C. R. Co., 89 Tex. 356, 34 S. 738.

36 Maine: Lincoln & Kennebec Bank v. Richardson, 1 Greenlf. (1 Me.) 81, 10 Am. Dec. 34.

Massachusetts: Ellis v. Marshall, 2 Mass. 269, 3 Am. Dec. 49.

Kentucky: Atkinson v. Tennill, 14 Ky. L. Rep. 922.

Maryland: State v. Baltimore &

town to a corporation to use its streets the company need not be necessarily incorporated and fully organized when the ordinance is originally presented for passage as it may become chartered at a later date and accept the ordinance at the time of its passage, and being then accepted and acted upon it becomes a contract between the city and the corporation.37 As was said by the court in an early case in Georgia this acceptance or "consent, either express or implied, is generally subsequent in point of time to the creation of the charter. And yet, no charter, that we are aware of, has been adjudged invalid, because the law creating it and previously defining its powers, rights, capacities and liabilities, did not take effect until the acceptance of the corporate body, or at least a majority of them, was signified." 38 If a city grants a franchise to a corporation for a term authorized by law, and the conditions thereof are accepted, the same constitutes a contract between the parties, the violation of which is the subject of litigation in an ordinary proceeding.39 And where, by the terms of a resolution of a township board, a franchise is to be absolutely void unless the company accepts the same, such acceptance of the resolution constitutes an irrevocable franchise.40 Conditions precedent must be strictly complied with before there can be an acceptance; or, in other words, acceptance must be strictly in conformity with conditions precedent.41 So an acceptance of a condition obligates the grantee to perform it, as in the case of the maintenance of a passageway in connection with a bridge franchise.42 Where a corporation accepts the benefits of a franchise, with knowledge of its termination, it cannot com

Ohio R. Co., 12 Gill & J. (Md.) 399, 38 Am. Dec. 319.

New York: Thomas v. Dakin, 20 Wend. (N. Y.) 9.

37 Chicago Teleph. Co. v. Northwestern Teleph. Co., 199 Ill. 324, 65 N. E. 329, 8 Am. Elec. Cas. 81; Clarksburg Electric Light Co. v. City of Clarksburg, 47 W. Va. 739, 35 S. E. 994, 50 L. R. A. 147.

38 Franklin Bridge Co. v. Young

Wood, 14 Ga. 80, 86, per Lumpkin, J.

39 Cedar Rapids Water Co. v. City of Cedar Rapids, 118 Iowa, 234, 91 N. W. 1031.

40 Hamtramck, Township of, v. Rapid Ry. Co. (Mich.), 81 N. W. 337.

"Lyons v. Orange, A. & M. R. Co., 32 Md. 98. See also Atkinson v. Tennill, 14 Ky. L. Rep. 922.

42 Boston v. Crowley, 38 Fed. 602.

plain, when the grantor insists that the termination of the franchise be observed, that such termination may affect the value of its property.43

§ 349. Same Subject.—A modification of an exemption in a charter should be accepted to be effectual; 44 but a consent to an ordinance modifying certain provisions may make a subsequent acceptance unnecessary.45 If additional powers are conferred, to take effect from the passage of a statute granting them they should be duly accepted and conditions necessary to give the statute effect should be complied with.46 Grants of new franchises should be accepted to be operative.47 But, although, in case of a statute authorizing consolidation of certain companies, there has been no acceptance in the form or manner required, still a corporation cannot for that reason be held a trespasser on public lands under a land grant.48 If a county subscription is granted on terms and conditions and it is accepted, such acceptance is burdened with such terms and conditions and the company will be estopped from asserting that they are unreasonable or void.40 Nor can a street railroad company accept a franchise and thereafter set up formalities as to the publication of the ordinance in order to relieve itself of its obligations.50 A charter created by special act, but not accepted before a new constitution prohibiting creation of corporations by special act, confers no rights as against the prohibition.51 Again, where a city attempts by ordinance to

43 Cedar Rapids Water Co. v. City of Cedar Rapids, 118 Iowa, 234, 91 N. W. 1031.

"Stevens County v. St. Paul, M. & M. R. Co., 36 Minn. 467, 31 N. W. 942.

45 City R. Co. v. Citizens' St. R. Co., 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. 653.

46 Hartford & C. W. R. Co. v. Wagner, 73 Conn. 506, 48 Atl. 218. "Lyons v. Orange, A. & M. R. Co., 32 Md. 98.

48 State v. New Orleans, C. & L. R. Co., 104 La. 685, 29 So. 312.

49 West Virginia & P. R. Co. v. Harrison County Court (W. Va.), 34 S. E. 786. See also Topping Avenue, In re, 187 Mo. 146, 86 S. W. 190. 50 Hattersley v. Village of Waterville, 26 Ohio Cir. Ct. R. 226.

51 State v. Dawson, 16 Ind. 40; Gillespie v. Fort Wayne & S. R. Co., 17 Ind. 443. Compare Atlanta, City of, v. Gate City Gaslight Co., 71 Ga.

106.

52

confer upon a corporation a right which it has no power to grant, the acceptance and use by the corporation of the privileges attempted to be conferred will not constitute a color of right which the city may not deny in an ordinary action; nor will the acceptance by the corporation of such privileges so illegally granted constitute a waiver by the city of its rights." Corporations may by an express or implied acceptance of curative statutes become de jure corporations possessed of all the powers granted under their charters.53 Formal acceptance may not be necessary under an offer, by statute, to any person to organize a railroad company under the authority of named commissioners; there must, however, in such case be an organization.54

§ 350. Same Subject—Implied Acceptance-Presumption -Evidence. Where express acceptance is not required it may be implied from acts showing the intent to accept, as in case of organizing and exercising the franchise,55 or corporate rights, development of the corporate property, election annually of directors, issuing stock, etc.,56 and, generally, acceptance may be evidenced by acts of the stockholders or officers.57 While formal acceptance need not appear from the records of

New York: Williams v. Bank, 7 Wend. (N. Y.) 540.

North Carolina: Benbow v. Cook, 115 N. C. 324, 22 S. E. 453, 44 Am. St. Rep. 454.

Texas: Quinlan v. Houston & T. C. R. Co., 89 Tex. 356, 34 S. W. 758.

Vermont: Scarsburgh Turnpike Co. v. Cutler, 6 Vt. 315.

Wisconsin: Heath v. Silverthorn Lead Min. & Smelting Co., 39 Wis. 146.

See United States Bank v. Danbridge, 12 Wheat. (25 U. S.) 64, 6 L. ed. 552.

Acceptance when presumed. See Attorney Genl. v. Chicago & Northwestern Rd. Co., 35 Wis. 425.

61

the corporation,58 still where a corporation is organized under a general law providing for signing, acknowledging and recording a certificate the acceptance is proved by the recording thereof.59 But an agreement by a street railway company to hold a city harmless from damages occasioned from noncompliance with the terms of an ordinance requiring vigilance from conductors and motormen and the stopping of cars quickly to avoid injury to pedestrians does not evidence an acceptance of the terms and conditions of such ordinance, as the city would not be responsible for the company's neglect to comply with the ordinance.60 Nor is a toll road franchise between certain points accepted by entering upon and into the possession of a highway between such points which the taxpayers have constructed. In an early case in Alabama the court says: "It is pressed upon the court, that to constitute a corporation, under said acts, it was necessary that the identical persons named in said acts, or a majority of them, should have accepted the provisions of said acts; opened books for subscription to the capital stock of said companies; obtained the subscriptions of stock required and organized, by electing directors and a president, as required by said acts. But, we hold that these acts, by their own vigor, made the persons named in each a body politic and corporate. After naming the persons, each act declares that they, 'and such others as may hereafter become associated with them for that purpose and their successors, are hereby declared and created a body politic and corporate.' They therefore become corporations immediately on the passage of said acts; but to exercise the privileges, it was necessary for them to organize by obtaining stock, etc., and electing a board of directors and a president. These acts are altogether unlike acts that authorize persons to become a corporation, by doing certain things; in such cases, the things to be done are conditions that must be complied with before they

58 Trott v. Warren, 2 Fairf. (11 Me.) 227.

59 Glymont Improv. & Excursion Co. v. Toller, 80 Md. 278, 30 Atl. 651.

60 Murphy v. Lindell Ry. Co. (Mo.), 54 S. W. 442.

61 Welsh v. Plumas County, 94 Cal. 368, 29 Pac. 720.