Page:Harvard Law Review Volume 8.djvu/423

407 LEASE OF RAILROAD. ^07 unlimited control of property and its owners. And if, in addition to the powers of eminent domain, taxation, and police, the Senate and House have a general power of conveying what the State does not own, they can lease any railroad on any terms to whom they please, and dispose of any private property as they see fit, can transfer all real and personal estate to one man, or make an annual distribution of it, or enact a universal community of interest in it, and leave it, in common and undivided, to be used by the strongest. On the question of power, English precedent and the pre-constitu- tional practice of this country establish either boundless despotism or nothing. In Massachusetts, as well as in New Hampshire, the law-making branch of government did not wholly abstain from non-legislative Acts after the adoption of the legislative limitation. In this State, the Senate and House continued to grant new trials until 1817.^ The same practice, continued in Massachusetts after the adoption of the State Constitution, is now held to be illegal.^ But the con- tinued exercise of the non-legislative and unHmited power of Par- liament and the pre-constitutional government of Massachusetts, in the conveyance of property not belonging ±0 the State, was held legal in Rice v. Parkman, which has become a leading case.^ The contrary doctrine has been settled here sixty years.* If the prop- erty of incorporated or unincorporated partners can be leased for ninety-nine years without the owners' consent, it can be sold with- out their consent. In Massachusetts and other States, the legis- lative power of selling private property for the owners' benefit is a survival of the consolidated form of government that enabled par- liament and the colonial assemblies to disregard the difference be- tween making law and administering it. When one sale of such property is ordered by a judicial decree,^ and another sale of the same kind and for the same purpose is ordered by a vote of the Senate and House, either the court legislate, or the legislature ex- ercise judicial power. There is usurpation on one side or the other. If a reservation of the power of amending a general or special Act of Incorporation is a creation, and a conveyance to the legis- lature, of a non-legislative power of altering a partnership contract 1 Merrill v. Sherburne, i N. H. 199. ^ Cooley, Const. Lim. 97-106. 2 Quincy Mass. Reports, 473, ;/. 17. * 4 N. H. 572, 573, 574. Petition of Baptist Church, 51 N. H. 424; Society v. Harriman, 54 N. H. 444, 446; Gray, Perpetuities, s. 590, n. 3. 54
 * Old South V. Crocker, 119 Mass. i, 26, 27 ; Bamforth v. Kamforth, 123 Mass. 280;