Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/273

 PART HI.] ACTS BEYOND THE CORPORATE POWERS. [§ 290. advisability of a law, and their decision will likely amount to the creation of a new legal proposition. To determine what public policy is, is the province of the legislature ;* and if acts, which would have been unobjectionable if done by individuals on their own behalf, are done by or on behalf of a corporation, are courts to declare such acts illegal merely because unau- thorized by the constitution of the corporation, when the state in its discretion may at any time interfere and restrain their commission or forfeit the franchises of the corporation ? Shall the court of its own motion, or at the suggestion of an individ- ual, declare illegal and void as against public policy the very act which the exponent of public policy at any time may have annulled, and yet refrains from interfering with? 2 By refrain- ing from bringing an action to restrain the commission of such acts, or to forfeit the franchises of the corporation as a penalty for their commission, the state seems impliedly to admit that they are not illegal as against public policy. § 290. In a case referred to before, Bissell v. Railroad Com- panies, Chief Judge Comstock said : 3 " But is it true that all contracts of corporations, for purposes not embraced in their charters, are illegal in the appropriate sense of that term ? This proposition I must deny. Undoubtedly such engagements may have the vices which sometimes infect the contracts of individuals. They may involve a malum, in se or a malum prohibitum, and may be void for any cause which would avoid the contract of a natural person. But where no such vices exist, the only defect is one of power, 4 the contract cannot be void because it is illegal or immoral. " So a church corporation may deal in exchange. This, al- though ultra vires, is not illegal, because dealing in exchange is, in itself, a lawful business, and there is no state policy in 1 " This court can know nothing of public policy, except from the constitution and the laws, and the course of administration and deci- sion. It has no legislative power. It cannot amend or modify any legis- lative act. It cannot examine ques- tions as expedient or inexpedient, as politic or impolitic. Considera- tions of that sort must, in general, be addressed to the legislature." Chase, C. J., in License Tax Cases, 5 Wall. 462, 469. 2 See § 457. 3 22 N. Y. 269-270. 4 Quaere, whether the use of this word here is consistent with the re- marks of the same learned judge on the distinction between " power" and " right." 22 N. Y. 264. 253