should be reversed is that the cable company contracted to sell, and sold, its assets of every description to the Pacific Company, and the value of the property and assets so sold was fixed by the terms and conditions of the contract of sale entered into between the corporate bodies; and that by force of the obligations of that contract the Pacific Company became bound to accept, and did accept, the net assets, property, franchises, etc., of the cable company in full payment of the shares of its capital stock issued to and held by the appellants and others, holders of shares of the stock of the cable company, and that, the Pacific Company being so bound, the creditors of that company are also likewise bound by the contract between said corporate bodies, unless said creditors affirmatively establish the contract was fraudulent and void. The appellants insist proof of fraud is wanting, and that, therefore, the appellate court erred in directing that the actual value of the property received by the Pacific Company should be ascertained by proof, and the stock issued by the Pacific Company should be deemed paid only to the extent of the actual value of said assets, property, and effects of the cable company. We entertain no doubt but that a corporation organized under the laws of Illinois may issue shares of its capital stock in payment for property of such character as it may lawfully possess and use, and may agree with the subscriber as to the value of such property, provided the agreement is made in good faith, and in the exercise of judgment fairly and honestly directed. We do not, however, think the transaction which resulted in the transfer of the assets and effects of the cable company to the Pacific Company had any effect to fix the price or value of such assets and effects, or that it constituted a contract of bargain and sale. The facts disclosed are that the holders of shares of stock in the cable company, because of the embarrassed financial condition of the company and of the provisions of the statutes of the state of California making them personally liable for the obligations of the company in proportion as their shares were to the capital stock, were much concerned, and feared heavy financial loss would be entailed upon them. Moved by such apprehensions, a number of such owners of shares of stock, among them the president, vice president, and several members of the board of directors of the corporation, held a meeting in the city of Chicago on the 5th day of August, 1889, for the purpose of taking counsel together as to the situation. and of falling upon or devising, if possible, some plan or course of action by which they might free themselves from the obligations imposed upon them by the laws of the state of California. The statutes of Illinois do not cast upon the holders of stock in corporations created in this state the obligation to pay the debts of the corporation, as do the laws

of California, and it occurred to them that the creation of a corporation in Illinois, and the transfer of the property and effects of the cable company to it by means of an exchange of the stock of the cable company for stock of the proposed Illinois company, would enable them to abandon the California corporation, and relieve themselves of the statutory liability resting upon them as stockholders in a corporation organized under the laws of that state, while they would hold and retain such property and effects as stockholders in the Illinois company. They proceeded without delay to carry the scheme into execution, the first step being the issuance of the circular letter herein before set out. On the 9th day of August certain of their number, including the president of the cable company and at least one member of its board of directors, applied to the secretary of state of the state of Illinois for a license authorizing them, as commissioners, to receive subscriptions to the capital stock of the proposed new corporation, to be called the Pacific Railway Company, and immediately on receipt of such license such persons subscribed for the entire capital stock, which they fixed at the same sum, and divided into the same number of shares, as the capital stock of the California corporation. They paid nothing upon such subscriptions. The subscriptions were nominal, in fact, and only for the purpose of accomplishing a pretended compliance with the statute, in order to obtain a speedy organization of the corporation. Without waiting, however, for the actual organization of the Illinois corporation, the same persons who were acting as commissioners to secure subscriptions to its capital stock, one of whom was the president of the cable company, another a director in that company, and all shareholders therein, prepared and sent to each holder of stock in the California corporation the circular letter hereinbefore set out, the purpose of which was to hasten the surrender of the stock in the California company, in order that it might pass out of existence before some act of insolvency occurred which would fasten upon its stockholders liability to respond to its creditors as provided by the laws of that state. The Illinois corporation was organized August 23, 1889. The board of directors, on the day the organization was perfected, elected as president of the company one C. B. Holmes, who was also president of the California company, and authorized him to negotiate with the California company for the purchase of its assets and property, to be paid for in shares of the stock of the Illinois corporation; and the corporate functions of the Illinois company were at once employed in the discharge of the sole mission and purpose of its creation, namely, to secure the substitution of its stock for the stock of the cable company. The efforts in this direction were pursued with such vigor that the great

er portion of the stock in the cable company was exchanged for stock in the Illinois company before the president of the Illinois company (he being at the same time president of the cable company) exercised the authority vested in him by the board of directors to submit a proposition to the cable company for the purchase, by way of exchange of shares of stock, of its assets and property; but the proposition for such exchange was finally made by letter on the 7th day of October, 1889, and was accepted by telegram on the same day or the next day after the letter reached the cable company. The entire stock of the Pacific Company was issued and exchanged for the stock of the cable company, though the lines of street railway in Los Angeles remained in the control of the officers of the cable company, and the earnings thereof were paid into the treasury of the cable company for a period of more than five months after the transaction, which counsel for appellants contend was a .contract of bargain and sale, had been fully executed.

It is perfectly clear this transaction is lacking in the material elements of a contract of purchase and sale. In the eye of equity, the stockholders of the cable company were the owners of the property of the company, and the corporation but a mere fiction, created for the purpose of representing as a collective body the individual corporators. These corporators did not part, and did not intend to part, with any right of ownership by force of the transaction relied upon to constitute a sale. After the completion of the transaction, these corporators or stockholders remained owners of the same interest and right in the same property which they possessed before its inception; and it is wholly immaterial, in an equitable point of view, that such right and interest therein are held under a different certificate of stock from that which formerly constituted the evidence of their ownership. The real purpose was to abandon the California corporation as the representative for them, collectively, and to create another artificial body-an Illinois corporation to serve them in that capacity in the future. To paraphrase what was well said when a similar question was before the court of appeals of the state of New York (People v. Ballard, 134 N. Y. 269, 32 N. E. 54), it was a corporate burial in California for resurrection in Illinois. The resurrection, however, involved that measure of personal liability which the statute of Illinois attaches to the ownership of shares of the capital stock of a corporation created under the laws of Illinois. This liability is created by section 8 of chapter 32 of the Revised Statutes, which provides "each stockholder shall be liable for the debts of the corporation to the extent of the amount that may be unpaid upon the stock held by him." The Pacific Company received the property

and effects of the cable company, and assumed to pay the obligations of the latter company. An adjustment of the value of such property and effects and of its obligations to its creditors will determine the net value of the property and effects received by the Pacific Company. In so far as the property and effects of the cable company exceeded the indebtedness of the company, the stock of the Pacific Company should be deemed paid. Therefore the position of each appellant who held stock interest in the California corporation is that instead thereof he is the holder of stock in the Illinois corporation paid up to the extent of the net value of his interest in the property and effects which were transferred from the California corporation to its successor, the Illinois corporation, and to that extent only, and therefore liable to the creditors of the latter corporation to the extent his stock is unpaid.

It is idle to contend the value of the property and effects so transferred was fixed and settled by the transaction which is denominated a sale. There was no sale, but simply an agreement entered into by and between holders of the stock of the cable company that they would transfer their stock interest to themselves, as stockholders in the Pacific Company, and that the latter corporation should be their business representative. In pursuance of this agreement, the parties thereto caused the Pacific Railway Company to be created. They were the only subscribers to its stock, and its officers and directors were of their body, and chosen for the express purpose of acting in their behalf. From every equitable point of view the Pacific Company was but the representative of the stockholders of the cable company, and the terms and conditions of the transfer but such as they agreed upon between themselves, and of no further binding force. The value of the property owned by them as a collective body, the title whereof they transferred to the Illinois corporation, was wholly unimportant, and did not enter into their consideration, the only concern being that the relative interests of the individual stockholders therein should be preserved. That was accomplished by giving the Illinois corporation the same capital stock as had the California company, and dividing it into shares of the same face value, and exchanging the shares of the two companies, share for share, without reference to the value of the property represented by such shares, giving to each shareholder the same number of shares in the new corporation that he had had in the old.

The rule of liability we have declared, it will be observed, is that which attaches to those who were owners of the stock in the cable company which they exchanged for shares in the Pacific Company. The same rule will also apply to any purchaser or assignee of the shares in the Pacific Company who acquired the shares with notice of the

facts relative to the mode and manner or purpose of its issue. The rule as to an assignee who purchased in good faith and without notice is laid down in Coleman v. Howe, 154 Ill. 458, 39 N. E. 725, as follows (page 471, 154 Ill., and page 728, 39 N. E.): "A purchaser or assignee of stock which has not been fully paid does not become liable to the corporate creditors for the unpaid balance, where the stock has been issued as fully paid, and he has acquired the same in good faith, and without notice that it has not been fully paid." Where stock, which has not been fully paid, but which was issued as paid-up stock, is sold to a bona fide purchaser without notice that it is not fully paid, the remedy of the creditor is preserved against the assignor of such stock by the provisions of section 8, c. 32, Rev. St., entitled "Corporations," which provides no assignor of unpaid stock shall be released from his obligation to the creditors by reason of his assignment of the stock. Hence, if any of the owners of stock in the Pacific Company who obtained the same in exchange for cable company stock held by them assigned the same to an innocent purchaser or assignee, the obligation of such assignor, under the statute, to the creditors of the Pacific Company, remains in as full force as though he still owned the stock, and if his assignee received the stock with notice that it was, as we have held, in part unpaid, both assignee and assignor are, by the force and effect of the provisions of said section 8, liable to respond to creditors. Nor is this liability in any wise affected by the fact the creditor knew, or did not know, when he extended credit to the corporation, that the stock was in part unpaid. The liability of the stockholder is established by the statute for the purpose of securing to the creditor the benefit of the entire fund which, in the contemplation of the statute, will be created by subscriptions to the capital stock of the corporation. The right of a creditor to avail himself of this liability of a stockholder arises out of the fact the stockholder has not, as the statute requires, paid the full amount of his subscription to the capital stock of the corporation, and the right is in no wise impaired by the fact that the creditor knew or did not know the stockholder was in default.

Counsel for the appellants cite adjudicated cases wherein it has been held that, where subscriptions to the capital stock of corporations were paid in property which was received by the corporation as in full payment of the subscription to its capital stock, such payment is, so far as the corporation is concerned, payment in full, and the corporation can enforce no further demand against the stockholder; and that a creditor of the corporation stands in no different position from the corporation, unless a fraud was committed on him by the arrangement

between the corporation and the stockholder, which operated to deprive him of some security upon which he had relied when he extended credit to the corporation; and also an expansion of the same doctrine that, if the creditor knew, when he gave credit to the corporation, the stock had been issued as full paid in payment for property purchased by the corporation, or had means of acquiring such knowledge, the creditor would stand in no better position than the corporation, and could only enforce liability against the stockholder in case the corporation could recover from such stockholder. We think the doctrine of these cases has no application as against the express declaration of our statute that the creditor shall be invested with a right to recover if the stock has not been fully paid. The legislative intent was that any amount unpaid upon subscription to the capital stock of a corporation should constitute a fund to which a creditor of the corporation might resort to obtain satisfaction of his demand against the corporation. We hold, therefore, that under our statute the right of a creditor to enforce liability against one who has subscribed for stock in a corporation, and has not paid his subscription in full, is not dependent, in any degree, upon the knowledge possessed by the creditor that such subscription was or was not paid in full. If unpaid to the corporation, it must be paid to the creditor.

The judgment of the appellate court that the decree of the circuit court of Cook county be reversed, and that the cause be remanded to said circuit court, is affirmed, but its directions to said circuit court are modified, and the said circuit court is directed to cause to be taken an account of the debts owing by the Pacific Railway Company, and to whom, and of the fair actual value of the property the company actually received for its stock at the time the said property was so received, and of the indebtedness of the cable company which the Pacific Company became liable to pay, and treat the stock as paid to the extent such value of the property received exceeds the sum of the indebtedness so assumed; and, when such account is taken, to enter a decree charging the appellants who obtained stock in the Pacific Railway Company in exchange for shares in the capital stock in the Los Angeles Cable Railway Company, and those, if any, who obtained stock in the Pacific Railway Company by assignment from former owners, having at the time notice that such stock was issued by the Pacific Railway Company in exchange for such stock in the Los Angeles Cable Railway Company, or notice that it was not in fact paid in full by the subscribers, respectively, with their pro rata share of such debts of the company to the extent of the unpaid, if any, portion of their stock, respectively, after exhausting the assets of the company, as provided in section 25 of the

(Supreme Court of Indiana. April 19, 1898.) CRIMINAL LAW-INCREASE OF PUNISHMENT-CONSTITUTIONAL LAW-BIGAMY.

1. Punishment may be lessened, but it cannot be increased, constitutionally, by a statute enacted after the commission of the offense.

2. A sentence of one dollar and three months in jail for bigamy, under Rev. St. 1894, § 2075 (Horner's Rev. St. 1897, § 1989), providing for punishment either by confinement in state's prison or in the county jail, is not within the provisions or governed either by the Indiana reformatory act or the indeterminate sentence law (Laws 1897, p. 69) which relates only to criminal cases where defendant is on trial for a felony "punishable" by confinement in the state's prison, since the word "punishable," as used therein, applies only to those crimes which actually are, and not which may be, punished by confinement in state's prison.

Appeal from circuit court, Floyd county; Jacob Herter, Judge.

William Hicks was convicted of bigamy, and his punishment fixed at a fine of one dollar, and confinement in the county jail for three months, and he appeals. Affirmed.

Kelso & Kelso, for appellant. Wm. A. Ketcham, Atty. Gen. (Merrill Moores and Dickey & Aydelotte, of counsel), for the State.

MCCABE, J. The appellant was indicted in the Floyd circuit court for bigamy. On a trial of the charge by the court without a jury, he was found guilty, and his punishment fixed at a fine of one dollar, and confinement in the jail of the county for three months, and judgment was rendered accordingly. The record and assignment of errors are sufficient to present for decision the question discussed by appellant's counsel, namely, whether the law by virtue of which it is claimed by them appellant was convicted was not an ex post facto law as to appellant's offense, and therefore unconstitutional. The offense was committed, as shown both by the indictment and appellant's own special plea of confession and avoidance, on April 8, 1896. But the indictment was not returned until May 15, 1897, after the indeterminate sentence law of 1897 took effect. Acts 1897, p. 69. Appellant's learned counsel contend that that law changed the penalty prescribed for all felonies other than treason and murder in the first and second degrees, and hence, as to the offense here charged, such punishment is ex post facto, and violative of the constitution. Punishment may be lessened, but it cannot be increased, constitutionally, by statute enacted after the commission of the offense. Dinckerlocker v. Marsh, 75 Ind. 548; Strong v. State, 1 Blackf. 193; Com. V.

Mott, 21 Pick. 492; State v. Arlin, 39 N. H. 179; Mullen v. People, 31 fll. 444. Assuming that the change effected in the punishment of that class of felonies falling within the indeterminate sentence law, by virtue thereof is such as to render it violative of the constitution as to offenses committed before its enactment and prosecuted thereafter, and assuming that the offense here involved falls within that law, appellant's counsel, to make sure of no escape from the conclusion they seek, go into an elaborate and mysterious, if not ingenious, argument to the effect that there is no saving clause or statute left standing and in force by which such an offense, committed before the enactment of the law in question, as in the case here, can be thereafter prosecuted and punished according to the old law. We find it quite unnecessary to go into an examination of the abstruse and incomprehensible questions so extensively urged upon our attention, because the assumptions of counsel above mentioned we find have no foundation whatever. It may be safely conceded that both the indeterminate sentence law and the reformatory act have the effect of modifying or changing the punishment of that class of felonies falling within their respective provisions, without affecting the question here involved. And assuming, without deciding, that the change in such punishment is of such a character as to offenses committed before their enactment respectively, as to make the same ex post facto, still that cannot affect the question here involved, unless the felony here involved falls within the provisions of the indeterminate sentence law as appellant's counsel have erroneously assumed that it does, or the reformatory act. Section 2075, Rev. St. 1894 (Rev. St. 1881, § 1789; Horner's Rev. St. 1897, § 1989), defines bigamy, and prescribes the punishment of imprisonment "in the state prison not exceeding five, nor less than two years, or fined not exceeding one thousand dollars, and be imprisoned in the county jail not less than three or more than six months." This is a felony, according to our statutory classification of public offenses, because it is provided by the Code of Criminal Procedure that: "All crimes and public offenses which may be punished with death or imprisonment in the state prison shall be denominated felonies, and all other offenses shall be denominated misdemeanors." Rev. St. 1894, § 1642 (Rev. St. 1881, 1573; Horner's Rev. St. 1897, § 1573). Appellant's counsel, in reaching the assumption that this case falls within the indeterminate sentence law, have assumed without any foundation whatever that the appellant was over 30 years of age. There is not a thing in the record showing what the age of appellant was when he was convicted. Without a finding by the court or jury trying the facts what the age of the accused is, there is no means of knowing whether the case falls within the provi

sions of the indeterminate sentence law or the reformatory act, if it were otherwise within the purview of either, because the former is applicable only to male offenders 30 years of age or over, while the latter exclusively applies to male offenders between 16 and 30 years of age. So that we must determine whether the crime of which appellant was convicted falls within the purview of either act. Evidently the trial court was of the opinion that it did not fall within either, or the court would have found what appellant's age was. Evidently the legislature did not intend to include within the indeterminate sentence law or the Indiana reformatory act any felony where adequate and proper punishment is less than imprisonment in the state prison, because otherwise they must have intended, in cases like the present, to substitute imprisonment in the state prison or the Indiana reformatory for such felonies as may be adequately punished by a few days in the county jail and some small fine, such as, in this case, one dollar fine and three months in the county jail. To hold that the legislature intended to substitute the severer punishment of a penitentiary sentence for a jail sentence in cases deserving no higher or severer punishment than such jail sentence and a fine, would be in conflict with the reformatory character pervading both acts, and the general spirit of both acts. To say that the intent of the act is to reform offenders by sending them to the penitentiary instead of the jail, where formerly they would have gone, is to accuse that body of a lack of common sense. The first section of the indeterminate sentence law reads thus: "That whenever any male person thirty years of age or over, shall be on trial for any felony, which is punishable by imprisonment in the state's prison, except treason, and murder in the first and second degrees, the court or jury trying said cause shall ascertain only whether or not the person is guilty of the offense charged; if more than one offense is charged then it shall be found by such court or jury trying such person as to which of such offenses such person is guilty, if of either, and of which such person is not guilty, if of either. Instead of pronouncing upon such person a definite time of imprisonment in the state prison, for a fixed term, after such finding or verdict, the court trying said cause shall pronounce upon such person an indeterminate sentence of imprisonment in a state's prison for a term, stating in such sentence the minimum and maximum limits thereof, fixing as the minimum time of such imprisonment the term now or hereafter prescribed as the minimum imprisonment for the punishment of such offense, and as the maximum time, the maximum time now or hereafter prescribed as a penalty for the commission of such offense." The meaning of the first clause in the section is controlled by the meaning of the word "punishable." And

that clause largely controls the meaning of the whole section. The word "punishable" is defined by Webster to mean deserving of or liable to punishment. If the language had been as in the section just quoted classify. ing offenses, namely, "all crimes which may be punished with * imprisonment in

the state prison," we should have a very different question before us. But the meaning of the sentence is as if the legislature had said that whenever any male person 30 years of age or over shall be on trial for any felony which deserves punishment by imprisonment in the state prison, or which is a necessary part of the punishment of his crime, except treason and murder in the first and second degrees, the court or jury trying the cause shall, etc. That would make the section include all that class of felonies where imprisonment in the state prison is a necessary part of the punishment prescribed, and a part of the class where, as in the case before us, such imprisonment in the discretion of the court or jury trying the case may be imposed, namely, that part of that class where the court or jury trying the case deem the offense proven under the circumstances deserving of punishment in the state prison. But the other part of the class, namely, such as the one before us, where the jury or court trying the case do not deem the offense of such malignancy as to deserve or require imprisonment in the state prison, does not fall within the purview of the section just quoted. This view is further strengthened by the fact that in no part of the section, and especially that part following the word "punishable," is provision made as to that part of the punishment for any felony which may, in the discretion of the jury or court trying the case, consist of a fine and imprisonment in the county jail instead of imprisonment in the state prison or the Indiana reformatory. Liability to such punishment under the various felony statutes cannot be abrogated unless done so expressly, or by legislation absolutely repugnant thereto. And this, we have seen, has not been done by the indeterminate sentence law. This principle was, in effect, ruled in Miller v. State (at this term) 49 N. E. 894. That was a prosecution' for burglary and larceny under the reformatory act, there being nothing said in said act about other penalties and punishments than imprisonment in the state prison. It was there said: "The judge now fixes not only the punishment as to imprisonment, but as to all other penalties prescribed by the section of the criminal code with the violation of which the defendant was charged. In this case, the court ought to have adjudged as part of the punishment that appellant be disfranchised, and rendered incapable of holding any office of trust or profit for some determinate period." But in cases like the one before us, if tried by a jury, the court ought to instruct them, if, in their opinion,