Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/112

 § 120.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. were specified and discussed in Chapter II. Further, it is es- tablished as a universal rule that a corporation has the powers which are expressly granted to it by its constitution, as well as those powers which are incidental or necessary to the exercise of its express powers in attaining the objects of its incorpora- tion. Consequently, whether a given act is within the powers of a corporation depends on the construction of its constitution. These questions of construction, however, are often difficult, as the constitution of a corporation may be obscure ; and how a court will decide a question of the construction of corporate powers may even depend on the temperament of the judges, and whether they are disposed towards a liberal construction, or consider it in general the wiser policy for the law to keep corporations well within the apparent scope of their powers. 1 Giving the opinion of the Supreme Court of the United States in Thomas v. Railroad Co., 2 Justice Miller said : " We take the general doctrine to be in this country, though there may be exceptional cases and some authorities to the contrary, that the powers of corporations organized under legislative statutes are such and such only as those statutes confer. 3 Con- ceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers, and that the enumeration of these powers implies the exclusion of all others." Few cases consciously militate against this general statement. 4 1 The remark in the text is illus- trated by the difference of opinion which for a century has raged about the meaning of the words " necessary and proper " as used in the Federal constitution; a difference of opinion which has often drawn the lines be- tween political parties. Is a measure " necessary and proper " to carry out the powers of congress ? The answer of most persons will depend partly on whether they think the measure a desirable one, and partly on whether they believe in extending or narrow- ing the powers of the central govern- ment. 92 2 101 U. S. 71, 82. 3 Ace. Oregon Ry. Co. v. Oregonian Ry. Co., 130 U. S. 1. In construing the powers of a corporation, refer- ence is to be had, not only to its charter or enabling act, but to all statutes affecting the corporation. See Relfe v. Rundle, 103 U. S. 222 ; Dorsey Harvester Rake Co. v. Marsh, 6 Fish. Pat. Cas. 387 ; State v. Lin- coln Trust Co., 144 Mo. 562. 4 " The charter of a corporation, read in connection with the general laws applicable to it, is the measure of its powers, and a contract mani- festly beyond those powers will not