Page:Harvard Law Review Volume 9.djvu/296

268 268 HARVARD LAW REVIEW, true that a dissenting minority of stockholders would still have all the rights of a partner in respect of confining his associates to the enterprise to which he agreed to contribute his capital. This is not a case in which partnership law has drawn upon corporation law for its conception of limitations upon the power of the majority. The reverse has been the case, as may be seen by a consideration of Lord Eldon's decision in Natusch v. Irving.^ The observations which have just been made in regard to legis- lative declarations of policy with respect to particular forms of enterprise are of course applicable to the case of quasi public cor- porations. Where the nature of the business is such that the public has an interest in the conduct of it, it seems not unreasonable to insist that the business shall be regulated as a business, and not with reference to the fact that it is carried on by a corporation. It is settled that a strictly private corporation may mortgage its property and "plant," unless prohibited. It is said to be equally well settled that a corporation with public duties to perform, as, for example, a railroad, cannot make a valid mortgage contract unless specifically authorized. The reason assigned is that a mortgage " may ripen into a sale," and that in the latter case a sale means that the railroad can no longer perform its duties to the public. In the judgment of the writer, it is altogether unphilosophical to make this distinction the basis of a judicial development of a doc- trine of corporation law. If the distinction is really of any impor- tance, it should be made the subject of a legislative enactment regulating the management of railroads. The prediction may be hazarded that before twenty-five years have passed away our courts will have manifested a disposition to depart from the present basis of decision, and that they will have indicated an intention to aban- don the attempt to regulate a business by developing the law relating to one out of several agencies by which, conceivably, that business may be carried on. It must not be forgotten, however, that the latter part of this dis- cussion has been concerned with XhQ possible rather than with the actual in corporation law. In point of fact, there is a grand division of jurisdictions upon the primary question of public policy outlined above. The Supreme Court of the United States,^ the Supreme Courts of Massachusetts,^ Alabama,* and a few other States, have ' Gow on Partnership, App., p. 398, ed. 3. * Bank v. Dunkin 54 Ala. 471. ' Central Transportation Co. v. Pullman's Pal. Car Co., 139 U. S. 24, 3 Davis V. Old Colony R. R. Co., 131 Mass. 258.