the States of the American union by a criminal information in the nature of a quo warranto. The form and substance of the judgment, so far as respects the seizure of franchises, is the same whether the proceedings be civil or criminal, being that of ouster or seizure of the franchises into the hands of the State. The pleadings also are very similar.1 § 54. (d) of the grounds of forfeiture - Misuser and nonuser. An information to forfeit the charter of a corporation must set forth a substantial cause of forfeiture. Wilful misuser, neglect or non-user of its franchises by a corporation, or failure to discharge the obligations imposed upon it, either expressly or by implication in its charter, constitutes a ground for the forfeiture thereof. For example, the failure of a bank 1 State v. Real Estate Bank, (1854), 5 Ark. 595, 598, per Lacy, J. 2 Attorney-General v. Railroad, 6 Ired. 456. See generally upon the grounds of forfeiture, Beach on Railways, $$ 585-588. Although it is said that an information in the nature of quo warranto against a corporation for forfeiture of its franchises may charge it generally with usurpation, and on defendant setting forth the act of incorporation and justifying under it, the attorneygeneral may reply the cause of forfeiture generally. People v. Kankakee River Improvement Co., 103 Ill. 491. In California it has been held that in a proceeding to forfeit the franchise of a corporation, and restrain its members from exercising the same, an allegation that defendants never had such franchise is sufficient, without specifying in what respects their right thereto is defective. People v. Stanford, (1888) 77 Cal. 360. But where a count in a petition prays for the forfeiture of franchises then being exercised by a company of persons acting as a corporation, and alleges that if it ever had, as a corporation, any legal existence, privilege, or franchise, the same has become forfeited, the previous existence of the corporation not being alleged, no cause of action is stated. People v. Stanford, (1888) 77 Cal. 360. A judgment forfeiting the charter of a private corporation, and dissolving an injunction upon the acts of the liquidators that had been appointed by the company, will not be disturbed on appeal, unless the creditors or stockholders complain of the acts. State v. Herdic Coach Co., 35 La. Ann. 245. People v. North River Sugar Refining Co., (1890) 121 N. Y. 582; s. c. 8 Ry. & Corp. L. J. 22; State v. Bank of South Carolina, 1 Spears, 433; Valley Bank v. Ladies' C. S. Soc., 28 Kan. 423; State v. Pipher, 28 Kan. 127; State v. Commercial Bank, 10 Ohio St. 539; Planters' Bank of Mississippi v. State, 7 Sm. & M. 163; Beach on Railways, § 587. "Under our system of creating corporations by special acts of legisla tion, ostensibly for the public benefit, the judgment of the legislature is exercised upon the necessity and propriety of the corporate grant at the time and place where it is sought, and one important element in such judgment is the extent of previous to redeem its notes,' suspension of business by a corporation, or inability to perform its duties to the public by reason of insolvency, the neglect or refusal of a water company to supply water to all persons entitled thereto, the failure of a railway company to run regular trains upon its road sufficient for the accommodation of the public, the neglect of a turnpike company to rebuild bridges which have been destroyed, or to outstanding corporate franchises of the same class and character. It is obvious that no accurate knowledge on this subject would be attainable, and no judicious legislation could be expected, if corporations created by existing and former acts were at liberty to cease transacting business and again resume it whenever they pleased. From the considerations, and the public objects and purposes of their creation, it follows that the charters of these corporations imply and require that they shall perform the business for which they are instituted, and an entire omission to commence business and a substantial suspension of the same after it is commenced, are alike violations of the provisions of their acts of incorporation." In re Jackson Marine Ins. Co., 4 Sandf. Ch. 559. See how ever Brandon Iron Co. v. Gleason, 24 Vt. 228. The information must aver that the alleged nonfeasance or misfeasance was wilful on the part of the corporation. State v. Turnpike Co., 2 Sneed, 254. See note by H. C. Black, to Ottaquechee Woolen Co. v. Newton, (Vt. 1885) 21 Cent. L. J. 432, 434. 1 State v. Bank of South Carolina, 1 Spears, 433; Planters' Bank of Mississippi v. State, 7 Sm. & M. 163; State v. Commercial Bank, 10 Ohio, 539. 2 Hartford v. Boston, H. & E. R. Co., 40 Conn. 524, where it was held to be no defense that the suspension of business was involuntary and forced upon the company by legal proceedings. People v. Northern R. Co., 53 Barb. 98, a case of insolvency together with suspension of business for thirteen years. But insolvency is not a ground of forfeiture except so far as it results in non-user. State v. Commercial Bank, 13 Sm. & M. 569. And the mere fact that a corporation has been alleged insolvent, and a receiver has been appointed, in an action brought against it, does not ipso facto forfeit its charter. Moran v. Lydecker, (1882) 27 Hun, 582. 3 Lumbard v. Stearns, 4 Cush. 60. 4 But where the business on a branch road was not sufficient to justify running regular trains, the company was held to be excused, the court saying: "It is contended that the duty is not relative, but absolute; that it is not to be measured by the public wants and exigencies at the time, but is to be performed at all hazards, or at any sacrifice, unless or until the legislature shall interpose to relieve the corporation from its performance. This position can not be sustained." Commonwealth v. Fitchburg R. Co., 12 Gray, 180. 3 People v. Hillsdale & C. Turnpike Co., 23 Wend. 254. And in such a case it is no defense that the act giving the company the power to erect bridges is permissive only. Washington &c. Turnpike Co. v. Maryland, 19 Md. 239. keep its road in repair, or a sale of a part of its road to avoid the duty of keeping it in repair,2 neglect or refusal of a corporation to make reports as required by statute, rendering false reports, failing to keep its principal place of business within the State as required by statute, corruptly procuring Washington & B. Turnpike Co. v. State, 3 Wall. 210, where the defense that the legislature had authorized the construction of a railway whereby the tolls of the turnpike were so reduced as to be insufficient to enable the company to keep its road in repair, was disallowed, Nelson, J., delivering the opinion of the court and saying: "It might have been very proper for the State when chartering the railroad to have provided for compensation for the prospective loss to the turnpike company, as has frequently been done in other States under similar circumstances; but this was a question resting entirely with the legislature of the State, and their action is conclusive on the subject. There is another answer to the defense in this case, even assuming that the charter of the turnpike company contained exclusive privileges that forbade the legislature of the State incorporating the railroad company. The remedy was not in neglecting to repair the road, and at the same time collecting the tolls. It was in restraining by proper proceedings the railroad company from constructing its road. The breach of the contract on the part of the State furnished no excuse for the turnpike company in disregarding its part of it, which was a burden, to wit, the repairs, while at the same time insisting upon the observance of the part beneficial, to wit, the collection of the tolls." Ohio St. 171. In an Illinois case, 4 Eastern Archipelago Co. v. Regina, 23 L. J. (N. S.) Q. B. 82; s. c. 22 Eng. L. & Eq. 328, where the company falsely reported to the Board of Trade that its capital had all been subscribed. 5 State v. Milwaukee &c. R. Co., 45 Wis. 579. So, if an act incorporating a bank authorizes its location in a particular county, the establishState v. Seneca County Bank, 5 ment of an agency in another lo 2 State v. Pawtuxet Turnpike Co., 8 R. I. 182. legislation for its own benefit,' and entering into agreements with other corporations whereby the public is deprived of the benefit of competition between them,2 have been declared to be sufficient causes for the forfeiture of their charters. But an attempt by a corporation to change its corporate name in a manner not authorized by law does not avoid its charter.1 66 § 55. Of trust" agreements as a ground of forfeiture.— The doctrine of forfeiture for misuser or non-user of corporate franchises, has recently been declared to apply to companies whose shareholders have entered into agreements tending as it is claimed to deprive the public of the benefit of competition between them, which is said to be the purpose and effect of the modern combinations commonly called "trusts." cality at which the banking business is carried on, is a violation of the charter. People v. Oakland County Bank, 1 Doug. (Mich.) 282. 1 People v. Dispensary & H. Soc., 7 Lans. 304, where the company agreed with and paid to a lobbyist so much of an appropriation for its benefit as exceeded five thousand dollars. Cf. In re White Mts. R. Co., 50 N. H. 50. 2 Vide infra, § 55. See also, Richardson v. Buhl, ("The Diamond Match Case," Mich. 1890) 43 N. W. Rep. 1102; People v. Chicago Gas Trust Co., (Ill. 1890) 22 N. E. Rep. 798 * See cases cited in preceding notes. In Colorado it is provided by statute that a banking corporation which fails, within a year, to pay up its entire capital stock in cash, shall forfeit its charter. People v. City Bank, (1885) 7 Colo. 226. 66 they are of the nature of unincorporated joint-stock companies, which are not recognized by the laws of that State. Louisiana v. American Cotton Oil Trust, (1887) 1 Ry. & Corp. L. J. 509. Under the English Companies Act of 1862, associations for the purpose of gain, consisting of more than twenty persons, are illegal, unless registered as a company under that act. 'Unregistered Companies," (1883) 75 L. T. 198. See also, Associations Legal and Illegal," (1885) 79 L T. 133, and cases there cited. The general literature of this subject will be found in the following articles, reviews and publications: "Trusts according to Official Investigations," by E. Benjamin Andrews, Quarterly Journal of Economics, January, 1889; "The Legality of Trusts," by Prof. Theodore W. Dwight, Political Science Quarterly, December, 1888; 66 O'Donnell v. Johns & Co., (Tex. "Trusts," by F. J. Stimson, Har1890) 13 S. W. Rep. 476. vard Law Review, October, 1887; 5 People v. North River Sugar Re- "Trusts:" an Address by S. C. T. fining Co., (1890) 120 N. Y. affirming s. C. (N. Y. Sup. Ct. 1889) 5 Ry. & Corp. L. J. 56; Beach on Railways, § 588. In Louisiana these combinations are illegal because Dodd, Esq., before the Merchants' Association of Boston, January 8, 1889; Argument of Hon. Granville P. Hawes before Committee of the New York Senate, 1888; "Combina While contracts in partial restraint of trade are undoubtedly legal,' it was the policy of the ancient common law to dis tions: their Uses and Abuses, with a history of the Standard Oil Trust," by S. C. T. Dodd, Esq., 1888; "A Statement of Pending Legislation and its Consequences," by S. C. T. Dodd, Esq., 1888; Winter's Bibliography of "Trusts," 7 Ry. & Corp. L. J. 236; Address by John H. Flagler, President, &c., before the Commercial Club of Providence, Rhode Island, December 15, 1888; Argument of Thomas J. Semmes, Esq., on behalf of the Cotton Oil Trust, New Orleans, March 12, 1889; Argument of General Roger A. Pryor before Committee of the New York Senate, 1888; "Trust Combinations," by General Roger A. Pryor, 1888; "Illegality of Trust Monopolies," by General Roger A. Pryor, 1888; Arguments of John E. Parsons, Charles P. Daly, and James C. Carter, on behalf of the Sugar Refineries' Company, New York, 1889; "Illegality of Trust Combinations, a Cause of Corporate Forfeiture," by General Roger A. Pryor, an argument in the Sugar Trust Case, New York, 1889; "Economic and Social Aspect of Trusts," by George Gunton, Political Science Quarterly, September, 1888; "Concerning Trusts," by Prof. Robert Ellis Thompson, a paper read before the Philadelphia Social Science Association, February 21, 1889; "Trusts, their Cause and Effect," by Charles F. Beach, Jr., (March, 1888) 3 Ry. & Corp. L. J. 217; "The Proposed Railway Trust," by Charles F. Beach, Jr., (July, 1889) 5 Ry. & Corp. L. J. 61; "Facts about Trusts," by Charles F. Beach, Jr., The Forum, September, 1889. See also the reports and printed testimony of the official investigations of "Trusts," respectively by a Committee of the Legislature of the State of New York, (Albany, March, 1888); the Congress of the United States, (Washington, March to September, 1888, also the minority report), and the Canadian Parliament, (Ottawa, May, 1888). Professor Theodore W. Dwight, in his erudite article in the Political Science Quarterly for December, 1888, considers the questions whether the objects sought to be accomplished by a "trust" are legal at common law; and how far it will be possible for a State legislature or the federal congress to prohibit it, if it be legal at common law. 1"Partial Restrictions on Business Freedom," by Elisha Greenhood, 19 Cent. L. J. 202; "Restraint of Trade," 10 Alb. L. J. 41. In Diamond Match Co. v. Roeber, 106 N. Y. 473, it was held that ". a party may legally purchase the trade and business of another for the very purpose of preventing competition, and the validity of the contract, if supported by a consideration, will depend upon its reasonableness as between the parties." It was also held that a restraint of trade was not general, but partial, though covering the whole country with the exception of Nevada and Montana. Indeed, excessive competition may sometimes result in actual injury to the public, and anti-competitive contracts to avert personal ruin may be perfectly reasonable. It is only when such contracts are publicly oppressive that they become unreasonable and are condemned as against public policy. Horner v. Graves, 7 Bing. 735. But "the cases where anticompetitive agreements were upheld had none of the distinguishing |