Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/140

 § 152.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. lish it is none of his business. Likewise, the question whether a body of men acting as a corporation are legally incorporated, is not the affair of a person whose rights are in no way affected. That a body of men shall not without due incorporation act as a body corporate is undoubtedly public policy. According-ty, any one may bring the matter to the attention of the attorney- general, who, on receiving the information, may institute, on behalf of the state, a proceeding in the nature of &quo warranto. But a private person cannot do this in his own name. 1 A case well illustrating the hardship and injustice which might result could any one at his will impugn the legality of corporate organization, is that of the Cincinnati, Lafayette, etc., Railroad Co. v. Danville and Vincennes Railway Co. 2 The de- fendant corporation, relying on technical defects in the organ- ization of the plaintiff, had instituted proceedings to acquire, by virtue of defendant's delegated right of eminent domain, the land on which the plaintiff's road was built, and in these proceedings had entirely ignored the plaintiff and its right of way, acquired by purchase over this land, the defendant's hope being thus to avoid making compensation to the plaintiff for the plaintiff's right of way. The plaintiff brought suit to restrain these proceedings, and the court sustained the action, holding that, notwithstanding the plaintiff's defective organi- zation, the defendant could not appropriate its property without making compensation. § 152. Accordingly, where two railroad companies have each authority to build and run a railroad between the same termini, neither can take exceptions to any irregularity in the exercise of the other's franchises, unless it can show a particular injury to itself. 3 If, however, a railroad company is chartered with the exclusive right to build a railroad between two given points, 1 Louisiana Savings Bank, Matter of, 35 La. Aim. 196 ; North v. State, 107 Ind. 356. See § 460. 2 75 111. 113. Compare Union Branch R. R. Co. v. East Tenn., etc., R. R. Co., 14 Ga. 327. 3 Erie R'y Co., v. Delaware, L. & W. R. R. Co., 21 N. J. Eq. 2S3. See West Jersey R. R. Co. v. Cape May, etc., R. R. Co., 34 N. J. Eq. 164 ; 120 Market St. R'y Co. v. Central R'y Co., 51 Cal. 583. A chartered turnpike company has no right of action against a railroad company subsequently chartered to run between the same termini and along the same line of travel for di- verting its custom. Washington, etc., T. Road v. Baltimore & O. R. R. Co., 10 G. & J. (Md.) 392; White River