Perkins v. Coffin , 84 Conn. 275 ( 1911 )

This action seeks to restrain the Connecticut River Company from accepting an amendment to its charter enacted in 1909, and from exercising the powers conferred by that amendment. The stipulation of counsel, that the amendment has in fact been accepted, relieves the court from the necessity of deciding whether an order restraining the company from accepting this amendment should issue.

I agree with the opinion of the court: "The charter, when originally granted, was unquestionably a close one. No reservation of a power of alteration, amendment or repeal was contained in it." Unless the plaintiff stockholders have given up their contract right under this charter, it was not open to amendment, and the plaintiffs are entitled to the relief prayed for in case authority for the acts complained of cannot be found in the original charter.

It is said the amendment to its charter in 1856, changing the date of its annual meeting, opened the charter under the provisions of General Statutes, § 3315, which in its present form has been in force since 1845, viz.: "When any amendment or alteration of the charter of any corporation shall be made, if it be not otherwise specially provided in the resolution making such alteration or amendment, it shall not become operative, unless within six months after its passage it shall be accepted at a meeting of such corporation, legally warned for that purpose, nor unless, within said period, an attested copy of said acceptance shall be filed in the office of the secretary of State, to be recorded by him in a book kept for that purpose; and such acceptance shall make the original charter, and all resolutions amending and altering the same, subject to amendment, alteration, and repeal, at the pleasure of the general assembly." The amendment of 1856 was never in fact "accepted at a meeting of the corporation," and no attested copy of said acceptance was filed in the office of the secretary of State. The company held its annual meetings at the date named in the amendment ever since its passage, and the court holds that this course of conduct constituted an acceptance. The statute, in my view, makes these acts to be performed within six months conditions precedent to the operation of the amendment. I have been directed to no rule of construction which permits a statutory power, expressed in definite and precise terms, to be disregarded and controlled by the acts of a party affected by it. We held in Hartford C. W. R. Co. v. Wagner, 73 Conn. 506, 509, 48 A. 218, under General Statutes, Rev. 1888, § 1911, now § 3315, that an amendment to its charter giving a corporation the right to condemn land must be accepted by proper vote and a copy lodged in the office of the secretary of State, "since otherwise the power would not have been given." Acceptance will be implied from the exercise of the powers granted, provided there be no statutory prohibition forbidding this. When it was provided that the amendment "shall not become operative" unless certain things were done within six months, the failure to fulfill these conditions rendered the amendment nugatory. The court does not hold or suggest that the 1881 amendment opened this charter, and we presume for this reason.

The amendment of 1881, which was duly accepted, recites (§ 3): "but this resolution may be amended or repealed at the pleasure of the general assembly, but such amendment or repeal shall not affect the rights, liabilities, obligations, or immunities of said corporation under its original charter"; thus the amendment clearly preserves all of the rights under the charter, one of which was the constitutional right of freedom from amendment, and this reservation constituted a recognition by the general assembly that the charter was not subject to amendment under § 3315. When the amendment of 1909 was enacted the charter was not open to amendment, and dissenting stockholders are entitled to restrain the company from the exercise of any of the powers conferred by such amendment and not contained in the charter. The inference that this charter became an open charter upon the acceptance, by user, of the amendment of 1856, is one which ought not to be lightly made. The charter gave this company valuable privileges and an exemption from taxation. We may assume that this company never intentionally parted with this exemption for an amendment merely changing the date of the annual meeting. The value of this exemption helps us to understand the legislative meaning in the amendment of 1881, in the language quoted and in the similar language used in the amendment of 1909. These are recognitions that this charter was not open to amendment, and the 1909 amendment was an attempt to preserve its rights thereunder.

The court construes this complaint as limited to an assertion of those acts which it is desired to restrain which are involved in the construction and development of an electric power plant and electric transmission system, and it decides that these have relation solely to the generation, delivery and sale of electric power, and, while it does not particularize, it makes inevitable the inference that it does not consider the complaint to allege that this company intends to engage in the electric lighting or heating business, both of which are within the scope of the amendment.

Confining the complaint to electric power alone is too narrow a construction, and neither does justice to the intent of the pleader nor to the manifest desire of both parties to secure an adjudication of the questions argued. In their demurrer the defendants treated the complaint as containing allegations relating to electric lighting. The case was presented to this court from this standpoint and no suggestion was made that the case should be confined to the electric power business. This limited construction of the complaint will in all likelihood compel the plaintiffs to bring another action in order to have their rights fully adjudicated, — a result to be avoided if possible in justice to all the parties in interest.

Space permits only a reference to a part of the allegations of the complaint. The amendment of 1909 authorized the company to manufacture, generate and produce electricity and electric power for the purposes of power, light and heat, and granted to it in broadest terms all the powers necessary to enable it to effectuate these purposes. The company accepted this amendment. It has already incurred an indebtedness of large proportions for the purposes of the development of an electric light and power plant. It intends to construct and operate an electric power plant and transmission system, and this, and the generation and sale of electricity, would convert this company into an electric light and power company.

The pleader might have used language of clearer import, but his intent seems to me unmistakable. The term "electric transmission system" has a technical meaning of broad significance. One of the standard authorities says: "The subject of power transmission is a very broad one: dealing with the transmission and distribution of electrical energy as generated by the dynamo or alternating current generator to the receiver" which may be lamps, motors, etc.

By "electric transmission system," taken in connection with the allegation that the company had expended its funds to develop an electric light and power company and that its construction and operation of an electric power plant and electric transmission system would convert the company into an electric light and power company, the pleader intended the use of a general term for the conveyance of electricity generated in the electric power plant and for the purpose of supplying power and light under its amendment.

The whole of the complaint should be read together, and in the liberal spirit of our Practice Act the language relied upon by the court, "electric power plant and electric transmission system," "should be accorded such reasonable construction as would give effect to the pleading with reference to the general theory upon which it proceeded and do substantial justice between the parties." So viewed, the complaint alleges acts which indicate that the company purposes to engage in the electric lighting as well as the electric power business.

The injunction prayed for would prevent the establishing or constructing of any electric power plant for any purpose and the generating, selling or delivering of electricity for any purpose. It may be that the restraint prayed for is broader than the facts alleged justify, but that they justify some order of restraint. If this be true under the relief prayed for, such order must be issued.

I need not pursue the discussion of this point; in my view there is no legitimate distinction to be drawn between the electric lighting and the electric power business, so far as the authority under this amendment to conduct them is concerned.

If the amendment of 1856 can be held to have been accepted through the exercise by the company of the powers it gave, and the charter thereafter became subject to amendment, the law allowed amendments which were incidental and auxiliary to the powers granted by the charter and forbade amendments which materially and fundamentally change the charter and thereby violate the contract rights of the stockholder. The stockholder may waive the violation or enforce his contract rights. The State may authorize a corporation to alter its original enterprise and exercise new franchises, but these it may not do against the will of a single stockholder.

If the amendment of 1909 be a material and fundamental change, the right of these plaintiffs to an injunction is unchallenged. What will constitute a material and fundamental change is difficult of definition. An amendment which materially changes the scope of the business of the corporation or its business risk is a fundamental and material change. 1 Thompson on Corporations (2d Ed.) § 374.

Let us apply to this case these two conditions. Does this amendment materially change the scope of the corporation, or does it materially change its business risk? Let us ascertain in the first place the scope of the original charter.

The Connecticut River Company was incorporated in 1824, for the purpose of improving the boat navigation of the Connecticut River, and given power to widen and improve the channel of the river from Hartford to Springfield, and to erect wharves and piers in said river or on its branches; to build locks at the falls at Enfield; to construct a canal on either bank near said falls and to construct a dam or dams for the purpose of entering and leaving the locks in still water; to procure and possess any steamboat or boats to increase commerce on said river, and to charge toll for all boats passing up or down said river over or through said falls.

Section 11 of the charter provided that "the said corporation may purchase and hold so much real estate for making said locks, canal and dams as may be necessary or convenient, and may also purchase and hold such mill or mill seat or manufactories upon or adjacent to Enfield falls as they may judge expedient, and the same may lease or alien, by lease or deed," etc. From this power to hold and purchase "mill or mill seat or manufactories" the court holds that the right to supply them with water-power must be implied. A trial would have placed the court in better position to know whether such power is implied in this language than can be known upon a hearing on demurrer; but the facts of history as well as contemporaneous enactments we may take judicial notice of, and they furnish some light. 16 Cyc. 869; Arthur v. Norfield Congregational Church,73 Conn. 718, 731, 49 A. 241; Taylor v. Barclay, 2 Simons 213, 222; State v. South Norwalk, 77 Conn. 257,261, 58 A. 759; Smith v. Speed, 50 Ala. 276, 279.

Hartford business men organized the Connecticut River Company in order to compete with New Haven business men who had organized the Farmington Canal Company to secure the business of the river towns of the Connecticut valley. By a canal it was intended to avoid the long land carriage around the Enfield Falls. The undertaking proved a difficult one for the men of that day to finance, and the project was saved by the organization of The Connecticut River Banking Company for the purpose, primarily, of furnishing aid to the River Company. The building of the dam and the canal destroyed the water-power of one or more mills, and § 11 gave the company power to take over such concerns and lease or alien them.

After the canal was opened on November 11th, 1829, one line, and part of the time two lines, of steamboats operated between Hartford and Springfield until the advent of the railroad in 1846 destroyed shipping business on this part of the Connecticut. After its charter was granted the projectors of the company saw possibilities of utilizing the water-power and building up a manufacturing village in Windsor at the foot of the locks, hence the name Windsor Locks. Thereafter the company began to utilize the water-power for the operation of manufactories. That use has admittedly continued to the present time. The business was of great public utility and is responsible for the town of Windsor Locks and its manufactories.

Under such circumstances the State had no interest to question the exercise of an ungranted power, and the stockholders' interest, seeing a business of growing possibilities taking the place of the decadent steamboat and the lost tolls, was not heard to complain.

In the amendment to its charter, passed in 1881, the General Assembly stated one of the purposes of the amendment to be "to preserve and maintain the water-power of said company." This I think is such a recognition of this long use of the water-power in the conduct of its business, as to have made the right to such use a practical part of its charter, although not in the original charter.

Whatever powers this section confers over mills or mill seats or manufactories, must be exercised "upon or adjacent to Enfield falls," and not elsewhere in the towns of Windsor Locks and Suffield or the county of Hartford, as attempted to be conferred by the proposed amendment. Further, the authority to purchase and hold such mills or mill seats or manufactories does not confer the power to operate; in express terms the statute limits its power over these to its right to lease or alien. Had the intent of the General Assembly been to permit the company to operate manufactories there would necessarily have been included in this provision the right to operate any kind of a manufactory. That is, in this very general language would have been found the power to engage in any form of manufacturing. We have seen that the purpose of the charter did not contemplate this. Its projectors claimed no such power any more than those who conduct its present business claim it.

The State has never conceived that canal companies of this character were manufacturing companies; thus we find in the classification of the Private Acts of 1789 to 1836, published by authority of the State in 1837, this and other canal companies are placed in a separate class and not in the manufacturing class.

The policy of the State, as evidenced by all charters of manufacturing companies granted before and after 1824, was to state in the charter the purposes of the company, and to confine it to certain specified kinds of manufacturing. An omnibus charter permitting a corporation to engage in any and all forms of manufacturing was unknown in that day, and this affords most cogent reason that no departure was made therefrom in this instance.

In late years very broad charters have been granted by the General Assembly, but none, I believe, which purport to give a corporation power to embark in every form of manufacturing. Such charters contain restrictions which are absent from this charter. The terms of the Act are absolutely silent as to any such purpose, nor is there language which by reasonable implication admits of such power.

As we said in Southington v. Southington Water Co.,80 Conn. 646, 658, 69 A. 1023: "We are bound to assume, for all that here appears, that the words used in the resolution enacted were used in their accustomed and approved sense, and that, if some other meaning was intended, some other appropriate expression would have been employed."

The record does not tell us whether this or any other canal company of the State ever undertook to manufacture a commodity for trade. I have not felt at liberty to take judicial notice of what local history may say of this. The trial would have presented the fact, and a practical construction put upon this charter is high evidence of what the charter is, and if it were established that neither this nor any other canal company had ever engaged in the manufacturing business it would indicate a State policy which a court would have no right to assume was abandoned in enacting this charter.New Haven and Fairfield Counties v. Milford, 64 Conn. 568,574, 30 A. 768; Geer v. Rockwell, 65 Conn. 316,323, 32 A. 924. Were this grant subject to two constructions, that is to be adopted which is most favorable to the State and against the company. Hartford BridgeCo. v. Union Ferry Co., 29 Conn. 210, 222; Bradley v.New York N. H.R. Co., 21 id. 294, 306; Geer v.Rockwell, 65 id. 316, 323, 32 A. 924; Stourbridge Canal v. Wheeley, 2 Barn. Adol. 793.

Since, then, this charter gave no power to engage in the manufacturing business, the next inquiry is whether the generation of electricity for power and light for sale is manufacturing. What electricity is we do not know. But we know that mechanical energy developed by the steam engine or by water-power may be at its source converted into electrical energy by machinery, devices and apparatus discovered by man. We know that this process of conversion is purely artificial, and that the electrical energy so generated may by further artificial devices be controlled, measured and liberated at will to do the service of mankind. Until apparatus was invented for transmitting this electrical energy to the point of use, it was unavailable for business purposes. Until a motor similar in construction to the generator but operating the reverse of it was invented which transformed at the point of use the electrical energy back into mechanical energy, it was unavailable for the operation of machinery in any form of industry. Until devices were invented to convert the electrical energy at the point of use into light, the great business of electric lighting could not exist.

The development of a business for furnishing power, or power and light, requires the expenditure of a large sum of money for building, plant, machinery and apparatus. The process by which this electrical energy is developed is the joint product of the brains, the capital and the labor of man. The process through which a new quality or use is given to the raw material of nature by the labor and savings of man, or by his inventive genius applied through the agency of machinery in combination with these so that it becomes the vendible commodity of a great business, is manufacturing.

Of the many charters granted electric light and power companies in this State with few exceptions the purpose is expressed to be "to manufacture, use and sell," or "to produce, generate and manufacture," or "to manufacture, use, rent and sell," or "to generate, manufacture and sell," or "to manufacture, generate, produce, sell, buy and lease;" but whatever the collocation of words expressive of the purpose, we find the word "manufacture" used. In the amendment of 1909 the purpose is stated to be "to manufacture, generate, and produce electricity and electric power for the purposes of power, light, and heat."

So we see the General Assembly has since 1881, the earliest year of the electric light and power company charters in Connecticut, regarded the generation of electricity by such companies as manufacturing, and this use of the term likewise indicates that expert opinion has regarded this as a proper designation for the process. We find a similar use of the term "manufacture" in the charters of like character in other jurisdictions. Our court in Norwich Gas Electric Co. v. Norwich,76 Conn. 565, 569, 577, 57 A. 746, in construing a statute referring to the manufacture of electricity, uses as one of its illustrations that of a manufacturer. Judicial opinion has pointed out that the word manufacture has long since lost its derivative meaning, and with the advance of science and art come to mean "anything made by art or skill." Commonwealth v.Northern Elec. L. P. Co., 145 Pa. 105, 116,22 A. 839; Carlin v. Western Assurance Co.,57 Md. 515, 526. When courts have been called upon to determine whether the generation of electricity was manufacturing, they have generally so held it to be. In People ex rel. B. E. M. Co. v. Wemple,129 N.Y. 544, 29 N.E. 808, the issue was whether the relator, an electric light company, was a manufacturing corporation and exempt from taxation under the statute, and the court held that the generation of electricity in the business of an electric light company was manufacturing and the company within the exemption. In a similar case, Commonwealth v. Northern Elec. L. P. Co.,145 Pa. 105, 22 A. 839, the court held the company not within the exemption by reason of the terms of the statute, although agreeing with the New York Court of Appeals in holding that such corporations were in fact engaged in manufacturing. Southern Elec. L. P. Co. v. Philadelphia, 191 Pa. 170, 172, 43 A. 123. InLamborn v. Bell, 18 Colo. 346, 350, 32 P. 989, the Constitution of Colorado gave the right of eminent domain for milling purposes. The court held milling included manufacturing, and that an electric light company was a manufacturing company and therefore a right of way for a ditch to convey water to an electric light plant might be condemned. Salt Lake City v.Salt Lake City W. E. P. Co., 25 Utah 456, 467,71 P. 1069. The manufacture of electricity has been likened by the courts to the manufacture of artificial gas (Nassau Gas Light Co. v. Brooklyn, 89 N.Y. 409; Emerson v. Commonwealth, 108 Pa. 111), and of artificial ice (People v. Knickerbocker Ice Co., 99 N.Y. 181,1 N.E. 669), and distinguished from the collection and distribution of natural gas and ice, which is the mere appropriation of a property of nature and not an artificial product resulting from machinery devised and directed by human skill and labor whose manufacture develops a new business by the wise use of capital combined with human foresight and energy. There is no need to show that the development of mechanical energy by water-power is not manufacturing. So far as I am aware such claim has never been made, nor could it be successfully made. If the proposition that the charter of 1824, up to the amendment of 1909, gave this company no power to engage in the business of manufacturing in any form, be sound, and the generation of electricity for use in the business of selling power and light is manufacturing, it would seem to follow as a corollary that a business foreign to its charter was beyond the corporate powers of this company, and constituted a material and fundamental change in its business character.

The terms of this amendment point clearly to its primary purposes, — the business of generating electricity for power, light and heat. All else in the amendment is subservient to this.

The admission in argument of counsel for the respondent, that this amendment, the free gift of the State, because of these very powers, is worth $100,000 to this company, is conclusive evidence of this purpose.

We have seen that this company was organized to improve boat navigation of the Connecticut River, and by user followed by legislative recognition, it charter powers were extended to include the sale of water-power upon or adjacent to Enfield Falls. The amendment of 1909 describes in detail the uses to which the electricity generated may be put. It may use it in its own business. It may sell or lease it to any manufacturing or business establishments located between said canal and river. It may sell or lease it to any of its tenants or lessees within the towns of Windsor Locks and Suffield for use on said leased premises. It may sell or lease electricity to any other manufacturing or business establishments in the towns of Windsor Locks and Suffield in quantities not less than fifty horse power. It may sell and deliver said electric power, light and heat, to electric companies and electric light and power companies duly authorized in any town, city or borough within the county of Hartford, and to any railroad company or street-railway company having any part of its lines within said county. It may deliver electricity in any town, city or borough in said county, either overhead or underground, and through public streets, ways and public grounds, first having secured permission from local authority. It may convey power, light and heat to electric companies and electric light and power companies in any city in said county upon the same terms as to location of lines, poles and conduits as are applicable to such companies in such cities.

The mere statement of the scope of this amendment makes inevitable the conclusion that the changes it will work in this business will be material and fundamental.

When it was attempted to secure for telephone companies the government aid given by the Act of Congress of 1866 to telegraph companies, the United States Supreme Court, through Harlan, Judge, used language applicable here: "It is not the functions of the judiciary, because of discoveries after the Act of 1866, the broaden the provisions of that Act so that it will include corporations or companies that were not, and could not have been at that time, within the contemplation of Congress."Richmond v. Southern Bell Telephone Co.,174 U.S. 761, 776, 19 Sup. Ct. Rep. 778. Our statutes place electric power and electric light and power companies in a separate class with telephone and telegraph companies, and provide for governmental regulation. Thus the State regards the business as separate and apart from other business. Such a corporation is a quasi-public corporation and within the sphere of public service corporations. Weld v. Gas Electric Light Comrs.,197 Mass. 556, 557, 84 N.E. 101; note to Jones v. NorthGeorgia Elec. Co., 6 L.R.A. (N.S.) 122 (125 Ga. 618,54 S.E. 85); 4 Cook on Corporations (6th Ed.) § 932.

That part of this company's business, to wit, the supplying water for power is a private business. The conversion of such a private business into a quasi-public business is a material and fundamental change in the character of that business. Almost universally the courts in analogous cases have held that a change in a charter so far-reaching as this could not be made against the will of a stockholder. The Hartford N. H.R. Co. v. Croswell, 5 Hill (N. Y.) 384, 385, is a leading case, and the opinion by Chief Justice Nelson has been frequently cited and relied on. It denied to a railroad authorized to construct and operate a railroad between Hartford and New Haven, the right to operate under an amendment to its charter a steamboat line from New Haven to New York. Carthage v. Carthage Light Co.,97 Mo. App. 20, 24, 70 S.W. 936; Toledo v. WesternUnion Tel. Co., 107 F. 10, 14; Omaha Electric L. P. Co. v. Omaha, 172 F. 494, 497; Richmond v. Southern Bell Telephone Co., 174 U.S. 761, 773,19 Sup. Ct. Rep. 778. I think these considerations show that the amendment will change the scope of the business of this company.

Let us now inquire whether this amendment will change the business risk of the company. The authorities say a controlling reason why a subscriber to stock cannot be held if the business venture is extended beyond that to which he subscribed, is that "it is not competent for his coadventurers, even with the aid of the legislature, to compel him to become a subscriber to a different venture." 1 Commentaries on Corporations, Thompson (1st Ed.) § 1286; Fry's Exr. v. Lexington B. S. R. R. Co., 2 Met. (Ky.) 314, 321; Durfee v. Old Colony F. R. R. Co., 5 Allen (Mass.) 230, 247.

Is it a new business venture to transform the private business of supplying water-power into the business of supplying electrical power, or electrical power and light to the public? Will this not add greatly to the responsibilities and duties of the company? Will it not involve it in large expenditures? Will it not entail a new plant, new machinery and new apparatus? Will it not require new and skilled men to conduct this new manufacture? Will it not require a reorganization of the business to meet the new demands and duties? Will it not require expert assistance from among those who are professionally or practically acquainted with the electric power, or the electric power and light business? Will it not require the securing of many new customers in order to pay the charges and operating expenses of the company operating under the new amendment?

In place of a business compact and simple to conduct, will there not be a business scattered over a large area, and complex in the diversity of its business? Does not this mean greatly increased fixed charges, operating expenses and taxes? Is not the business risk greatly varied and largely increased?

Under the old business the water-power, so far as we know, was adequate. The industrial development of Windsor Locks in the last decade would seem to indicate this.

The amendment itself shows that the construction of the additional dam or dams, and canal or canals, is a part of the development of the new business. It grants the company authority to issue its bonds in the sum of $1,000,000, a huge sum for this company with its capital stock of $203,000. We know from the terms of the Act, the nature and necessities of the old business, and the character, extent and requirements of the new, that these bonds are to finance the conversion of this company into an electric power, light and heat company. I do not understand how it is possible to sustain the position that the business risk to the stockholder will not be materially increased if the company generates and sells electrical power, or electrical power and light.Union Locks Canals v. Towne, 1 N. H. 44. Whether the change will benefit the stockholder or not, does not in the least affect his right to seek to restrain a material and fundamental change in the business of the company.

The court construes, as we have seen, the complaint to consist of acts involved in the construction of an electric power plant and electric transmission system and the sale in connection therewith of power. It says: "Should this corporation, therefore, make such constructions, build such a plant and install such a transmission system for the purpose of generating electrical energy from the latent water-power at its command and of transmitting it for useful application, and either itself use such energy for its own power purposes, or sell or deliver it to others for such use, and enter upon such course of action as a distinctive feature of its business enterprise, it would not be making a fundamental or material change in the character, purposes or objects for which it was created." That is to say, this corporation under this amendment may, in the business of generating electricity from water-power, itself use the power so generated, or sell the same to others as authorized by this amendment anywhere in Hartford county, "and enter upon such course of action as a distinctive feature of its business enterprise."

I have construed the complaint to include not only power, but light, within its prohibition, but the argument for or against either is as effective as if for or against both. The court reaches its conclusion by holding that the same potential agency exists in "the direct application of the water in its fall to the old time water-wheel," as in the different methods of utilizing water-power which have resulted from later invention and discovery, among which methods is that of generating electricity. "In this," the court says, "there is only a change of method and the use of a different medium." Therefore the generation of electricity for use in its own business or for sale is not a material change in the character, purposes or objects of a corporation having the power to utilize water-power.

It is true the mechanical energy developed by water applied to the water-wheel direct or to the modern turbine is the same in kind. And the mechanical energy which revolves the shaft of the turbine revolves the shaft of the electrical generator because it is a part of it or attached to it. But there the similarity ends, and electricity has not been generated. By devices of man this mechanical energy is transformed into electrical energy through the medium of the generator with its armature revolving in its magnetic field. This, as we know, is the manufacture of a vendible commodity, which contains a like energy with the mechanical energy of the water-power, but differs from it in the effects produced by it, in the method of controlling it, in the laws governing it, in its uses, and in the area in which it has the ability to do work.

Water-power, as such, could not be used away from the canal or industries whose machinery it operates. Its use is restricted to a few: that part of its business is of a private character; it cannot be sold to the public at large.

The generation of electricity for sale for power, or for power and light, is a public use, and the business a quasi-public business. The electricity generated may be divided into innumerable units, transmitted to great distances, and serve all the uses described in this amendment in furnishing power and light to any part of Hartford county.

The transmission of electricity, its storage, its measurement, its liberation, and its conversion into light, have all been accomplished by devices or apparatus designed each for a special purpose. Without these and many others, the business provided for by this amendment could not be conducted. The purpose of the present business of selling water-power is to supply mechanical energy to industries at or adjacent to Enfield Falls. Its character is local, its business private. The purpose of the new business is to convert this mechanical energy into electrical energy which may be transmitted and distributed anywhere in Hartford county by the instrumentality of mechanical devices and apparatus as a commodity of sale, and at the point of user again converted by machine or device into light, or by the purchaser into mechanical energy.

This is not merely a change in method and the use of a different medium, but the development of great business through the invention of man in conjunction with his capital and labor, thus enlarging the scope of the business, adding to its responsibilities, multiplying its capacity for work and use, and increasing its risk. And in law this is a material and fundamental change in the business.

I have found only one other instance in which the ground of decision was discussed in the opinion of the court. The claim there was that water-power and electric power were one, but the court saw in them vital and characteristic marks of difference. MinnesotaC. P. Co. v. Koochiching Co., 97 Minn. 429, 445, 451,107 N.W. 405.

The argument of the opinion would have added the telephone to the powers of a telegraph company, an electric light to a gas company, and converted the horse railroad to the electric street-railway company, against the will of dissenting stockholders.

Much of what has been said in the course of this discussion applies to this point, and need not be repeated.

The court holds that the business of generating and selling electrical power under this amendment is one readily separable from other businesses within the purview of the Act, and those provisions of the amendment appropriate to the power-business may readily be disassociated from those which touch upon other matters. The court does not make this separation. I have endeavored to accomplish this and failed. Most of the instrumentalities provided are obviously for the generation of electricity, but what part of these, if any, are for boat navigation, what for power, what for light and what for heat, cannot on this record be told. What part of the issue of bonds shall be for one and what for the others we do not know.

If the court is right in its conclusion that the generation of electricity is a mere authorization of a new method or medium for carrying out the original plan of developing and selling water-power, it would logically, and hence legally, follow, that the use ought to be confined to the existing uses, which are limited to the supplying of water-power at and adjacent to Enfield Falls, and hence the demurrer should have been overruled.

I have not attempted in this case to discuss the right of an individual or of the ordinary corporation, for their own uses, to generate electricity, but have dealt with the right of the Connecticut River Company, under the amendment of 1909, to engage in the public business of generating and selling electricity for power, or for power and light. I conclude by expressing my agreement with this statement: "There is a strong tendency in the decisions, and a tendency which is deserving of the highest commendation, to limit the power of the legislature to amend a charter under this reserved power. . . . Any attempt to use this power of amendment for the purpose of authorizing a majority of the stockholders to force upon the minority a material change in the enterprise, is contrary to law and the spirit of justice." Cook on Stock Stockholders, § 501.

The case was one which ought in my opinion to have had a hearing on the facts: the court would then have had before it facts which would have been of great assistance in construing this charter and these amendments, and a body of technical and scientific facts which would have enabled it to have spoken with greater certitude.

For the reasons above stated I think there was error.