Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/248

 § 264rt.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. This subject has been approached in three ways; in its con- sideration three different lines of reasoning have been followed ; and three doctrines have been formulated which differ in prin- ciple, yet offer points of contact and accord. (1) The rules of ultra vires as applicable to corporations may be worked out analytically, and questions arising- under them may be solved through the application of general and familiar principles of agency and estoppel. (2) Paramount weight ma} r be given to the demand of common justice, that whoever, in reliance on a contract has to his cost performed his side of it, may look to the other party to perform. Thus the question is regarded from the standpoint of the just rights of the party who has performed his side ; and the decisive consideration is whether the contract be still executory or have been wholly or partly executed. (3) The powers of a corporation may be regarded as absolute limits which it cannot pass; every attempt on its part to transcend them is futile, the contract or other transac- tion is void, and whether still executory or already executed by the corporation or by the other party, it cannot directly and affirmatively form the basis of an action. The preceding paragraph is not intended as a definite state- ment of these diverging views, but solely as a suggestion of the three ways of approaching the subject of ultra vires. Fre- quently the same decision would be reached whichever way the matter is regarded. For example, there is no conflict of decision in the instances where the contract is still wholly ex- ecutory on both sides. The first, which may be termed the analytical method, has the support of a number of decisions; the second is supported by the courts of New York and other states ; the third finds in the United States Supreme Court its chief exponent. We will begin with the first view, as it will assist to a due appre- ciation of the two others. § 264r«. The analytical method never loses sight of the con- / J!^J? } Tlie anSr 1 • • » 7 • I • 1 'yyy*' lyticai plicate questions of ultra vires ; and it assumes that !,&"& these questions cannot properly be solved so long as the conception of a corporation as a unit, as a legal person, is retained in the discussion of them. The first prerequisite to their proper solution is to recognize that by the term "corpo- 228
 * >„,, flicting interests and legal relations which may com-