Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/117

 PART I.] CONSTRUCTION OF CORPORATE POWERS. [§ 125. the public in some employment in which the public has a pro- j nounced interest, cannot without express authority mortgage f/Mftffimnchises. 1 As Justice Gray said in Richardson v. Sibley, 2 a case which held that a horse-railroad could not mortgage its road and franchises : " A corporation created for the very pur- pose of constructing, owning, and managing a railroad, for the accommodation and benefit of the public, cannot, without dis- tinct legislative authority, make any alienation, absolute or conditional, either of the general franchise to be a corporation, or of the subordinate franchise to manage and carry on its cor- porate business, without which its franchise to be a corporation can have little more than a nominal existence." 3 When, how- Lambert, 44 Iowa, 239 ; Susquehanna Bridge Co. v. General Ins. Co., 3 Md. 305; Lehigh Valley Coal Co. v. Agri- cultural Works, 63 Wis. 45; Wright v. Hughes, 119 Ind. 324; Fitch v. Steam Mill Co., 80 Me. 34. The power to mortgage, when not expressly given or denied, may be re- garded as incidental to the power to take and hold real estate and make contracts. Aurora Agricultural Soc. v. Paddock, 80 111. 2G3; West v. Madi- son County Agricultural Board, 82 111. 205; Taylor v. Agricultural, etc., Asso., 68 Ala. 229; Jackson v. Brown, 5 Wend. 590; Central Gold Mining Co. v. Piatt, 3 Daly, 263; Watts's Ap- peal, 78 Pa. St. 370, 391. Authority in the charter of a railroad company "to acquire, alien, transfer, and dis- pose of property of every kind," in- cludes the power to mortgage. Mc- Allister v. Plant, 54 Miss. 106. A corporation having authority to mortgage its property for the pur- pose of carrying on its business, may execute a mortgage to secure the pay- ment of future advances. Jones v. Guaranty and Indemnity Co., 101 U. S. 622. But a corporation formed under the New York Manufacturing Companies' Act of 1848 has authority to mortgage its property only to se- 7 cure the payment of a debt; not to raise money. Carpeuter v. Black Hawk Gold Mfg. Co., 65 N. Y. 43; see Davidson v. Westchester Gas- light Co., 99 N. Y. 559. The scope of Carpenter v. Black Hawk Gold Mg. Co. is narrowed down to very little by Lord v. Yorker Fuel Gas Co., 99 N. Y. 547. 1 Coe v. Columbus, etc., R. R. Co., 10 Ohio St. 372; Atkinson v. Marietta, etc., R. R. Co., 15 Ohio St. 21; State v. Morgan, 28 La. Ann. 482; Pullan v. Cincinnati, etc., R. R. Co., 4 Biss. 35; Daniels v. Hart, 118 Mass. 543; Palmer y. Forbes, 23111. 301; Frazier v. Railway Co., 88 Tenn. 138. See Carpenter v. Black Hawk Gold Mg. Co., 65 N. Y. 43. 50; Lord v. Yon- kers Gas Co., 99 N. Y. 547. But see Kennebec, etc., R. R. Co. v. Portland, etc., K. R. Co., 59 Me. 9, 23; Shepley v. Atlantic, etc., R. R. Co., 55 Me. 395, 407. 2 11 Allen, 65, 67. 3 See Commonwealth v. Smith, 10 Allen, 448. Power to sell its property conferred on a corporation in strong and general terms, includes the power to mortgage. Willamette Mg. Co. v. Bank of British Columbia, 119 U. S. 191. Compare East Boston R. R. Co. v. Eastern R. R. Co., 13 Allen, 422, 97