Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/286

 § 304.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. When, in order to accomplish objects in which the welfare of the public is concerned, a corporation is organized and powers and privileges are granted to it "which would be un- constitutional for the state to grant for private objects, any act of a contractual nature that the corporation attempts to do, which, if done, would render the corporation incapable of ful- filling the purposes of its incorporation, as contemplated in its constitution, is illegal and void. 1 Such acts are void because repugnant to the public welfare, and therefore against public policy. Under such circumstances public polic' is pretty clearly defined, and in order to determine it a court will hardly have to deliberate as a legislative assembly. It is a public policy already pointed out by the legislature. For instance, certain persons are incorporated to build and operate a railroad, and the right to take land b} 7, compulsory process is given them ; a right which it would be unconstitutional to grant for a private purpose. By such an act of incorporation the legislature plainly indicates its view that the welfare of the public demands the building and operation of such a railroad as directed in the charter, and impliedly asserts that any act, as a transfer of the road, which w r ould render impracticable the carrying out of the provisions in the charter in the manner prescribed, is con- trary to public policy. ance, cannot be raised in a suit in ejectment by the corporation. Shew- alter v. Pirner, 55 Mo. 218; Land v. Coffrnan, 50 Mo. 243; Chambers v. St. Louis, 29 Mo. 576. Compare Cole- man v. San Rafael Turnpike Co., 49 Cal. 517; City of Natchez v. Mallery, 54 Miss. 499; see § 276. 2 Edwards v. Fairbanks, 27 La. Ann. 449; compare Parish v. Wheeler, 22 N. Y. 494. 8 § 292. 1 Gulf, etc., R'y Co. v. Morris, 67 Tex. 692; Chicago Cas Light Co. v. People's Gas Light Co., 121 111. 530; Visalia Gas Co. v. Sims, 104 Cal. 320. A contract whereby a street railroad company transfers to an individual 266 for his private use the practically ex- clusive use of its tracks is void as against public policy. The right to construct and operate a street rail- road is a franchise which must have its source in the sovereign power; and it is a franchise which the legis- lature can grant only for the public benefit, and not for private use. Fanning v. Osborn, 102 N. Y. 441. In Sapp v. Northern Central Ry. Co., 51 Md. 115, it was held that an ease- ment of a private right of way could not be acquired against a railroad company by prescription; for pre- scription presupposes a grant, and a railroad company could not grant such an easement.