case is not intended to apply to sales of, or sub- | capital stock should be paid in, and then inscriptions to, the stock of an organized and vested in a plant, which was to be mortgaged going corporation, or the sale of the bonds of to secure the bonds. a going corporation. The necessities of the business of an organized company might demand an increase of capital stock; and, if such stock is lawfully issued it may very well be offered upon special terms. In such case, if the market price was less than par, it is clear that a purchaser or subscriber for such stock at its market value would, in the absence of fraud, be liable only for his contract price. So a case might arise where the stock of a going concern was much depreciated, and where its bonds were likewise below par, and there was lawful authority to issue additional stock and bonds. Now, in such case, the real market value of an equal amount of stock and bonds might not exceed, or even equal, the par value of either. In such cases, all questions of fraud aside, a purchaser would only be held for his contract price. The case we have been considering is that of the issue of the initiatory or organization stock-that class of stock which is to constitute the capital stock upon which the grant of the franchise depends. When a subscription is taken distinctly upon the condition that it is not to be binding until a stipulated thing is done, then such a subscriber does not become a stockholder, and is not entitled to the rights, or charged with the burdens, of a stockholder until the condition has been complied with. This court said, concerning conditional subscriptions: The capital of stock companies consists of their stock subscriptions. This is the basis of credit, and an essential to organization. This is a trust fund for the benefit of creditors in case of insolvency. Conditional subscriptions to the stock of corporations are unusual, and often operate to defeat subscribers who become such absolutely, and upon the faith that all the stock is equally bound to contribute to the hazards of the enterprise. It misleads creditors, and is the fruitful source of litigation and disaster. Tending to the ensnarement of creditors, and contrary to a sound public policy, conditional subscriptions to corporate shares ought not to be encouraged." Paducah & M. R. Co. v. Parks, 86 Tenn. 560. Says Mr. Morawetz: "It is evident, therefore, that the issue of certificates for paid up In that case the subscription was payable, shares to a shareholder whose shares have not one fourth when the railway was completed to in fact been paid up is unauthorized. It would the county line, remainder in four equal installbe a direct infringement of the rights of all ex- ments as the work progressed through the isting shareholders in the company, and a county, upon the proviso that the company essource of fraud upon persons giving the com-tablished a depot at Newbern. The company pany credit, or dealing in its shares thereafter. failed before a depot was established at NewHowever, after the capital of a corporation bern, and it was insisted that the subscription has been reduced by losses, it would not be a was thereby avoided. This court held that the wrong against the existing shareholder to issue subscription became absolute upon completion certificates for paid up shares on payment of of the road to the county line; that the proviso less than their par value. Under these circum- that a depot should be established at Newbern stances fairness and equality would merely re- was not a condition precedent, but an independquire that the new shares be issued at their ent stipulation; that the acts to be done were actual or market value. If shares in a corpo- to be done at different times, and hence were ration could in no case be issued at less than independent stipulations, and the remedy of their face value, it would be practically impos- the subscriber was for a breach of the stipulasible to increase the capital of a corporation by tion in his favor. the sale of new shares after the value of its shares had fallen below par." 1 Morawetz, Priv. Corp. § 306. The corporation having refused to execute this agreement, requiring it to issue its bonds to the subscribers for stock, and having determined that such a contract was void and illegal, as beyond the power of the corporation, it cannot, therefore, be specifically executed. This brings us to a consideration of the question as to whether the refusal of the corporation to execute this illegal agreement relieves complainant from his liability as a subscriber to the capital stock of this company. His subscription cannot be regarded as one upon a condition precedent. He subscribed, not upon condition that, before he should be required to pay, the shares and bonds should be delivered to him. On the contrary, his bill shows that he has already paid $1,000 upon his liability, and executed his negotiable notes for the remainder; and he states that he was to pay his subscription "as calls" should be made. He clearly contemplated that his subscription should be paid before any bonds were to be issued; for the bonds were to be secured by a mortgage of the company's plant, and this could not be created, except upon the supposition that the A condition subsequent is thus defined by Mr. Cook in his work on Stockholders: “A subscription on a condition subsequent contains a contract between the corporation and the subscriber whereby the corporation agrees to do some act, thereby combining two contractsone, the contract of subscription, the other, an ordinary contract of the corporation to perform certain specified acts. The subscription is valid and enforceable whether the conditions are performed or not. The condition subsequent is the same as a separate collateral contract between the corporation and the subscriber, for breach of which an action for damages is the remedy." Cook, Stocks & Stockholders, § 78. That Dr. Morrow's purpose was to become a shareholder cannot be doubted. The company regarded him as such, and he so regarded himself, for he not only acted as a stockholder, but became a director of the corporation. Says Mr. Morawetz: "If it appears that the subscriber intended to become a member of the corporation, and as such entitled to vote at meetings, and otherwise enjoy the privileges of membership, it is clear that the subscription cannot be deemed a subscription upon condition precedent.' 1 Morawetz, Priv. Corp. $ 89. (....N. C.....) That his intestate promised before his death to pay the amount of his bill can make no difference. The law would be untrue to itself to permit such an evasion. Calvert v. Williams, 64 N. C. 168; Turner v. Peacock, 2 Dev. L. 303; Warden v. Plummer, 4 1. A contract to pay a fee for services Jones, L. 524; Steers v. Lashley, 6 T. R. 61; rendered by a physician who is not licensed to Bishop, Contr. §§ 469, 470, 472, 473, 549. practice medicine is void in its inception where a The law does not recognize any difference statute prohibits him from practicing as a physi-between acts malum in se and malum prohibitcian for fee or reward. 2. An amendment to a statute prohibiting a person from practicing medicine without a license, which provides that it shall not apply to physicians who have a diploma from a regular medical college, cannot make valid a contract made before the passing of the amendment to pay for the services of an unlicensed physician who had such a diploma, which contract was void in its inception. 3. Services rendered by an unlicensed physician under a contract which was void in its inception, because prohibited by statute, do not constitute a consideration which will support an express promise to pay for the services. (February 18, 1889.) APPEAL by defendant, from a judgment of the Tyrrell County Superior Court in favor of plaintiffs in an action by the distributees of one Puckett, deceased, against his administrator for an accounting of certain moneys which he had retained from the estate for his services as physician. Affirmed. The facts sufficiently appear in the opinion. Messrs. Grandy & Aydlett, for appellant: Section 3132 of the Code was amended by Acts 1885, p. 501, so as not to apply to physicians who have a diploma, etc. Acts 1885, p. 180, § 3122. The Act of 1885, p. 501, applies to our case. Retroactive laws are not unconstitutional but competent to affect remedies, not rights. Tabor v. Ward, 83 N. C. 294; Hinton v. Hinton, Phil. L. 415; State v. Pool, 5 Ired. L. 105; State v. Bell, Phil. L. 76. There is no such thing as a vested right in any particular remedy. Tabor v. Ward, 83 Ñ. C. 295; Washington Toll Bridge Co. v. Beaufort, 81 N. C. 505. Messrs. Pruden & Vann and R. P. Felton, for respondents: The defendant commenced to practice medicine in 1876 and has failed to apply for or obtain a license from the board of medical examiners. He has no right to charge for his services nor can he sue for or recover the same in any court. Code, 3122, 3132. um. Sharp v. Farmer, 4 Dev. & B. L. 122; Bishop, Contr. § 471. Shepherd, J., delivered the opinion of the court: The Act of Assembly of 1858, chap. 258, § 2, re-enacted by section 3122 of the Code, provides that "No person shall practice medicine or surgery, nor any of the branches thereof, nor in any case prescribe for the cure of diseases, for fee or reward, unless he shall have been first licensed so to do in the manner hereinafter provided; Provided, That no person who shall practice in violation of this chapter shall be guilty of a misdemeanor." Section 2 of the same Act, re-enacted by section 3132 of the Code, provides that such persons shall not be entitled to sue for or recover before any court for such services. The defendant has been constantly practicing medicine since he received a diploma from the regular medical college in 1867, and "for fee or reward" rendered the services in 1883 which constitute the basis of his claim in this action. The performance of such services for fee or reward was absolutely prohibited by the statute, and the contract was therefore void in its inception. It is immaterial whether the act of the defendant was malum in se or merely malum prohibitum. Ruffin, Ch. J., in Sharp v. Farmer, 4 Dev. & B. L. 122, says that the distinction between these "was never sound, and is entirely disregarded; for the law would be false to itself if it allowed a party through its tribunals to derive advantage from a contract made against the intent and express provisions of the law." The defendant, however, insists that vitality is given to this void contract by chapter 261, Acts 1885, which provides that section 3132 of the Code be amended "by adding after the last words of said section the words, Provided, That this section shall not apply to physicians who have a diploma from a regular medical college, prior to January 1, 1880.'” What effect this proviso has upon section 3122, by way of repealing its prohibitory features as to such cases, mand. we are not now called upon to decide, as the | ing void in its inception, there was no considAmendatory Act is clearly prospective, and eration to support the promise, and it is theredoes not affect the case before us. Richardson fore ineffectual to sustain the defendants' dev. Dorman, 28 Ala. 681; Dwar. Stat. 162 et seq. Even if the statute were in terms retroactive, and repealed section 3122, it could not have the effect of creating a liability. "A contract, void at the time of its inception, cannot be validated by subsequent legislation. And if it violates, when made, a statute, the repeal of that statute does not make it operative. 1 Whart. Cont. § 368. If the contract had not been void by reason of section 3122, the defendant would have been entitled to enforce his claim after the passage of the Amendatory Act, the effect of which was to remove the disability to sue, imposed by section 3132; that section not affecting the right but the remedy only. Hewitt v. Wilcox, 1 Met. 154. The doctrine of a purely moral consideration being sufficient to support an express promise, attributed to Lord Mansfield, was, as is said by Mr. Wharton, in his work on Contracts, supra, § 512, soon abandoned, even in his own court; and it is now settled, both in England and the United States, that no merely moral obligation, no matter how strong, can support a promise unless the benefit from which the obligation arises was conditioned on the promise.' It is further contended that, notwithstanding this construction of the several Acts of Assembly, the defendant is entitled to enforce his claim by reason of the express promise of his intestate to pay for the services. The date of this promise does not appear from the case prepared by the court below. The record shows that administration was granted before the passage of the Act of 1885. However this may be, we are of the opinion that, the contract be-and that the judgment should be affirmed. In the elaborate note to the case of Wennall v. Adney, 3 Bos. & P. 252, the true rule, it seems to us, is laid down: "That if a contract between two persons be void, and not merely voidable, no subsequent express promise will operate to charge the party promising, even though he has derived the benefit from the contract." This view is fully sustained in Felton v. Reid, 7 Jones, L. (N. C.) 270, and in Smith, on Contracts, 203, where the author quotes with approval the language of Tindal, Ch. J., that "A subsequent express promise will not convert into a debt that which of itself was not a legal debt." We are of the opinion that there was no error, PENNSYLVANIA SUPREME COURT. Paul C. GREENWOOD, Piff. in Err., v. PHILADELPHIA, WILMINGTON & 1. A man has no right to omit the ordinary Ε' (March 18, 1889.) RROR to the Common Pleas of Delaware County, to review a judgment in favor of defendant in an action brought to recover damages for personal injuries alleged to have resulted from defendant's negligence. Affirmed. v. Smith, 28 Legal Int. 101; Berry v. Pa. R. Co. 5 Cent. Rep. 111, 48 N. J. L. 141. In built-up parts of the country-in towns and villages-the railroad is bound to use additional precautions, and the traveler has a right to expect them, and to rely upon them, and govern his conduct accordingly. Phila. & R. R. Co. v. Ervin, 89 Pa. 76; Correll v. Burlington, C. R. & M. R. Co. 38 Iowa, 120, 18 Am. Rep. 22; Mc Williams v. Keim, 1 Pa. Supreme Ct. Cas. No. 1. Even if the failure of a railway to perform a duty imposed by a municipal ordinance may not be considered as negligence, still it is evidence of negligence. Patterson, Railway Accident Law, § 41. Wherever the plaintiff is thrown off his guard by the acts or omissions of the defendant, he is not held to the same rule as to negligence that would be imposed on him otherwise. Pa. R. Co. v. Ogier, 35 Pa. 72; Phila. & T. R. Co. v. Hagan, 47 Pa. 244. As the defendant could not use the ordinary signals, it was bound to use extra precaution, There is no proof that it did. See Phila. & R. R. Co. v. Killips, 88 Pa. 405; Pa. R. Co. v. Werner, 89 Pa. 59. The speed of the train, the time reasonably The facts are sufficiently stated in the opin-required for the decedent to cross the track ion. Messrs. J. B. & J. H. Hinkson and W. Pa. R. Co. v. Ackerman, 74 Pa. 268; Pa. R. after he had fully committed himself to the act, the absence of the usual warning of the train's approach, the topography of the ground, and the opportunity which the decedent had for self-preservation were considerations for the jury. Schum v. Pa. R. Co. 107 Pa. 13. See Pa. R. Co. v. Ackerman, 74 Pa. 268; Pa. R. Co. v. | carriage approached the crossing the gates Coon, 2 Cent. Rep. 323, 111 Pa. 437; Delaware, were not lowered; they had become out of orL. & W. R. Co. v. Cadow, 12 Cent. Rep. 725, der that morning and had not been repaired. 120 Pa. 559; Schmidt v. McGill, 12 Cent. Rep. The watchman displayed no light and gave no 735, 120 Pa. 412; Pa. R. Co. v. White, 88 Pa. warning. The hose carriage did not stop as it 329; Pa. R. Co. v. Werner, 89 Pa. 59; Phila. approached the track in order to afford an opCity Pass. R. Co. v. Henrice, 92 Pa. 431; Ger-portunity to look and listen; nor did it even mantown Pass. R. Co. v. Walling, 97 Pa. 55; Pa. R. Co. v. Peters, 8 Cent. Rep. 405, 116 Pa. 216; Schall v. Cole, 107 Pa. 1; Lehigh Valley R. Co. v. Greiner, 4 Cent. Rep. 898, 113 Pa. 600. It is not always contributory negligence to cross a railroad without waiting for a passing train to go so far as to see if another is coming. Phila. & R. R. Co. v. Carr, 99 Pa. 505, 11 W. N. C. 549; Pa. R. Co. v. Garvey, 108 Pa. 369; Catawissa R. Co. v. Armstrong, 49 Pa. 186. If the railroad company was negligent, it is no answer to say that the driver of the hose cart was also negligent. Burrell Twp. v. Uncapher, 10 Cent. Rep. 328, 117 Pa. 353. Mr. Willlam Ward for defendant in error. Paxson, Ch. J., delivered the opinion of the court: The plaintiff brought this action in the court below to recover damages for injuries received by him, and which he claims were caused by the negligence of the defendant company. The court below gave a binding instruction to the jury to find for the defendant. Under such circumstances we must assume, not only that all of the plaintiff's testimony is true, but that he is entitled to every inference fairly to be drawn from it. The facts of the case, as we gather them from the evidence, may be briefly stated as follows: The plaintiff was a member of the Hanley Hose Company in the City of Chester. On the night of March 26, 1887, he was at the hose house and informed one or more members that there was a fire. To use his own language: "It looked from Edgmont Avenue to be over at Mr. Eyre's house, around Seventh Street. That is where I seen the fire." slacken its speed, but continued on, was struck by the train, and the plaintiff was thrown off the carriage and injured. Under such circumstances does the case come within the familiar rule "stop, look and listen ?" It was strongly urged upon the argument that the rule referred to does not apply for the reasons (a) that the plaintiff had a right to rely upon the fact that the safety gates were up; and (b) that the said rule is not applicable to towns and cities where trains are constantly crossing streets. I do not understand the law to be that when a railroad company adopts safety gates or any other appliance for the protection of the public the public are thereby absolved from the duty of taking any care of themselves. Conceding that the company was required to take extra precaution by reason of the gates being out of order, yet the plaintiff was also bound to do his part. He has no right to omit the ordinary precautions when approaching a railroad crossing merely because he finds the gates up. Machinery of all kinds is liable to get out of order, and may do so just at the critical moment of the approach of a train. In all such cases the safety of the traveling public requires that each party shall be held to the exercise of due care. The Had this hose carriage stopped near the crossing instead of rushing on at reckless speed, this accident would not have happened. train could have been seen for 100 feet before the crossing was reached. If the rule to stop, look and listen were always observed, an accident at crossings now so frequent, would rarely occur, whether in town or country. It is difficult to see why the rule is not as important in towns and cities as in the country, where in many instances the track can be seen for a long distance. The rule itself is so valuNo other person in Chester appears to have able; is sustained by such abundant authority; seen this alleged fire; nor was there any alarm and is moreover founded upon such excellent given to any of the other engine houses. The common sense reasons-that we will neither result of the plaintiff's announcement at the depart from it nor allow it to be undermined Hanley Hose Company's house was that the by exceptions. It is a clear and certain rule company immediately turned out. The plaint- of duty, and a departure from it is more than iff and one or two others got on the hose car-evidence of negligence; it is negligence per se. riage, and with a spirited horse started out to find the fire. The horse was driven at a rapid rate of speed for some distance along Fifth Street and then turned up Welsh Street. The railroad of the defendant company was one square from the corner of Fifth and Welsh. At the railroad crossing the company had for some time kept a watchman, and safety gates, which were lowered upon the approach of trains. Upon the night in question when the hose 3 L. R. A. I have not referred to the question of the city ordinances, for, conceding the negligence of the defendant company, the plaintiff was guilty of such contributory negligence as bars his right to recover. Nor have I discussed the numerous cases cited, as but few of them have any application to the peculiar circumstances of this case. Judgment affirmed. Green and Clark, JJ., absent. MINNESOTA SUPREME COURT. City of WINONA, Appt., v. with, 100 U. S. 525 (25 L. ed. 701); Hartford Bridge Co. v. East Hartford, 16 Conn. 171; SCHOOL DISTRICT No. 82, Winona Coun- Opinions of Atty-Gen. of Minn. pp. 99, 302, 361. ty, Respt. (....Minn.....) *1. Special Laws 1878, chap. 155, entitled An Act for the Establishment of Public Schools in the City of Winona," established a school system, not for the territory then within the city limits, but for the City of Winona, whether enlarged or diminished in area by future legislation; hence, that part of the territory of the defendant school district which was annexed to the city by Special Laws 1887, chap. 5, became a part of it for school as well as other municipal purposes, and ceased to be a part of defendant. 2. The Act of 1887, referred to, is not repugnant to section 27, art. 4, of the Constitution of the State, because the matter of the change in the boundaries of school districts is not mentioned in APPEAL by plaintiff, from a judgment of the District Court of Winona County, in favor of defendant in an action of ejectment to recover possession of certain school property. Affirmed. The facts sufficiently appear in the opinion. Messrs. H. L. Buck and W. A. Finkelnburg, for appellant: The territory annexed to the City of Winona by the Act of 1887 became part of the special school district of Winona. In Connor v. Board of Education of St. Anthony, 10 Minn. 439, it was held that where the Legislature detached a portion of the territory of a school district which adjoined the City of St. Anthony, and included it in the city, the territory so detached was incorporated into the school district composed of the City of St. Anthony. The incorporation of the territory upon which the school property in dispute is located, into the school district of Winona, carries with it the school property. Connor v. Board of Education of St. Anthony, 10 Minn. 439; State v. Lake City, 25 Minn. 404; Laramie Co. v. Albany Co. 92 Ü. S. 307 (23 L. ed. 552); North Hempstead v. Hempstead, 2 Wend. 109; Dillon, Mun. Corp. § 128; Wade v. Richmond, 18 Gratt. 583; Higginbotham v. Com. 25 Gratt. 633; Mount Pleasant v. Beck*Head notes by MITCHELL, J. NOTE. For legislative power over municipal corporations, and change of city limits, see Daly v. Morgan, 1 L. R. A. 757 note. As to constitutionality of statute where matter included is not stated in its title, see Titusville Iron Works v. Keystone Oil Co. 1 L. R. A. 361; Hart v. McElroy (Mich.) 2 L. R. A. 609. In the absence of some constitutional prohibition, the corporate existence of municipalities is subject to legislative control; and where such corporation is legislated out of existence, and its territory annexed to other corporations, the latter, unless the Legislature otherwise provides, becomes entitled to its property and severally liable for a proportionate share of its then existing debts. Dillon, Mun. Corp. § 186. There is no restriction on the power of the Legislature to divide public corporations, unless it is found in the Constitution of the State; and upon such division, if the corporation possesses public property, and no provision to the contrary is made by the Legislature, each subdivision of the old corporation is entitled to hold in severalty the public property which falls within its limits. Dillon, Mun. Corp. § 188; N. Hempstead v. Hempstead, 2 Wend. 109; Laramie Co. v. Albany Co. 92 U. S. 307 (23 L. ed. 552); School Dist. No. 1 v. Richardson, 23 Pick. 62; School Dist. No. 6 v. Tapley, 1 Allen, 49. The Legislature has unlimited power over municipal corporations and their property; such corporations are altogether public, and their property is under the control of the Legislature, and is not within the provisions of the Consti tution protecting private property. See Darlington v. N. Y. 31 N. Y. 164; State v. Lake City, 25 Minn. 404. School districts are quasi corporations, and under the control of the Legislature. They may be, at its will, changed or divided, or the property transferred from one organization to another. See also State v. McFadden, 23 Minn. 40; GranConnor v. Board of Education, 10 Minn. 439. by v. Thurston, 23 Conn. 416; Laramie Co. v. ton v. Cedar Rapids & M. R. R. Co. 24 Iowa, Albany Co. 92 U. S. 307 (23 L. ed. 552); Clin475; Layton v. New Orleans, 12 La. Ann. 516. Snow, for respondent: City of Winona does not necessarily change The area of the special school district of the with the area of the city. State v. Independent School Dist. 46 Iowa, 425. Even if the extension of the city limits has operated a like extension of the area of the Winona school district, and a corresponding reduction in the area of the defendant district, the defendant is not thereby deprived of its property. constitutional power of the Legislature, even It is greatly doubted if it would be within the by express provision, to deprive defendant of its property without compensation and without its consent. See Town of Milwaukee v. City of Milwaukee, 12 Wis. *93; State v. Haben, 22 Wis. 665; State v. Foley, 30 Minn. 356; Grogan v. San Francisco, 18 Cal. 590. Title to realty can pass only by some sort of an express grant, or by virtue of a judicial proceeding. Neither of these modes of transfer is found here. |