Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/274

 § 291.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. restraint of that business." It must be admitted that the last statement of the learned judge contains a petitio jprincipii ; for the question is not whether the business of exchange is lawful, but whether it is lawful for a church corporation to carry it on. Again, the learned judge says : " The illegality of an act is determined in its quality, and does not depend on the person or being which performs it." This seems rather a hasty gen- eralization, for assuredly it would not be legal for an unauthor- ized person to execute the sentence of the law on a condemned felon, even at the time, place, and in the manner ordered for the hanging. Moreover, in the same case, Judge Selden makes a remark not in accordance with the expressions of the chief judge : " Although the authorized contract may be neither malum in se nor malum prohibitum, but, on the contrary, may be for some benevolent or worthy object, as to build an almshouse or a college .... yet, if it is a violation of public policy for corporations to exercise powers which have never t— been granted to them, such contracts, notwithstanding their — praiseworthy nature, are illegal and void." 1 § 291. A leading English case, in regard to the illegality of y . / ultra vires acts, is East Anglian Rail way Company v. English Eastern Counties Railway Company; 2 a case which is still law in England, though parts of the opinion 'fY of the court have been unfavorably commented on. The fol- lowing passages are from the opinion of Jervis, C. J. : " It is clear that the defendants have a limited authority only, and are a corporation only for the purpose of making and main- taining the railway sanctioned by the act ; and that their funds can only be applied for the purposes directed by the statute. .... Every proprietor, when he takes shares, has a right to expect that the conditions upon which the act was obtained will be performed, and it is no sufficient answer to a shareholder ex- pecting his dividend, that the money has been expended upon an undertaking which, at some remote period, may prove 1 N. Y. 285. Just as Judge Corn- stock bad done, Judge Selden de- cided in favor of the plaintiff, but on a different ground. He held that as the contract for transportation was ultra vires, no action would lie 254 on it; but that the plaintiff could recover on the ground of tort. See §§335ef seq., as to liability for the torts of corporations. 2 11 C. B. 775.