The opinion
L. HAND, Circuit Judge
(dissenting in part).
I agree in all respects with my brothers except as to the effect of the amendment of 1927 to section 26 (35 Del. Laws, e. 85, § 10). The original form of the section gave power to a corporation to “alter or change the preferences given to any one or more classes of [preferred] stock.” The most telling words of the amendment are, “by changing the * * * preferences, or * * * participating * * * or other special rights.” I read these in the alternative; that is, “pref* *336 erenees,” or participating or other special rights not “preferences.” As we are concerned with “preferences,” strieti juris, the effect of the new law remains the same, for the right to past cumulative dividends is a part of the preference of the preferred shares. Of course, the amendment shows a general disposition to enlarge the corporate powers, but that I should hardly think extended to “preferences” when those are left as they were originally. Personally I should not have thought that the cumulative dividends conferred any “vested” rights, whatever that much abused word may mean. They seem to me to he no more than a right to an increased dividend when any is declared, or at least when there are earnings. But like my brothers I yield on that to the Delaware courts, which have considered them as creating present rights. If so, I can find no language in the amendment which ought to be construed retroactively any more than the original words ought to have been. Therefore I would declare that the corporation might not declare any dividends on the common shares until the cumulated dividends on the old preferred shares have been paid. As to the new prior preference shares I would dismiss the bill, again following Morris v. American Public Utilities Co., 14 Del. Ch. 136 , 122 A. 696 .