Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/288

 § 305a.] THE LAW OK PRIVATE CORPORATIONS. [CHAP. VII. § 305a. In accordance with its previous decisions, 1 the Su- preme Court of the United States recently held that a corpora- tion having public duties to perform, as, for example, organized to transport passengers in its cars, cannot lease its entire prop- erty ; such a lease is ultra vires and void, and the lessor corpo- ration can sustain no suit upon it even for rent due at the time of bringing suit, although the lessee has had the benefit of the lease. 2 Authority to consolidate and con- nect with a road of a foreign corpo- ration is not authority to lease to that corporation. Archer v. Terre Haute and I. R. R. Co., 102 111. 493. Authority given by statute to one railroad company to buy the road of another, is authority to the latter company to sell. New York and N. E. R. R. Co. v. N. T., etc., R. R. Co., 52 Conn. 274. Compare State v. Con- solidation Coal. Co., 46 Md. 1. See §420. Authority in the charter of a tele- graph company to lease its line, fix- tures, and apparatus, does not au- thorize a lease of its franchises, and a lease of its franchises is void. Philadelphia o. Western Union Tel. Co., 11 Phila. 327. A railroad company cannot escape the performance of any duty or obli- gation imposed by its charter or the general law, by a voluntary surrender of its road into the hands of lessees; and the corporation remains liable for injuries occurring when its road is being run jointly by its receiver and its lessees. Railroad Co. v. Brown, 17 Wall. 445; Whitney v. At- lantic, etc., R. R. Co., 44 Me. 362; Wyman v. Penobscot, etc., R. R. Co., 46 Me. 162; York and Maryland Line R. R. Co. v. Winans, 17 How. 30; Ricketts r. Birmingham Street Ry. Co., 85 Ala. 600; Van Steuben v. Cen- tral R. R. Co., 178 Pa. St. 367. In Parr r. Railroad Co., 43 S. C. 197, a j 268 railroad company was held liable for an injury occurring while its road was being operated by the receiver of its lessees. See §§ 131, 132, 170. 4 Richardson v. Sibley, 11 Allen, 65; Commonwealth v. Smith, 10 Allen, 448; Daniels v. Hart, 118 Mass. 543. See Richards v. Merrimack, etc., R. R. Co., 44 N. H. 127; see State v. Sherman, 22 Ohio St. 411, 428. Au- thority to a railroad company to mortgage its " road, income, and other property " does not authorize a mortgage of its franchises. Pullan v. Cincinnati, etc., Air Line R. R. Co., 4 Biss. 35. As to what has been construed as authority to a railroad company to sell or mortgage its road, see Branch v. Jesup, 106 U. S. 468. It has been held that a railroad company, expressly authorized to borrow, has implied power to mort- gage its road and its right to build and use the same; though the court said it "could not (they supposed) mortgage its corporate existence or any other prerogative franchise." Bardstown & L. R. R. Co. v. Metcalf, 4 Mete. (Ky.) 199. 5 Pearce v. Madison, etc., R. R. Co., 21 How. 441; Adams v. R. R. Co., 77 Miss. 194; Topeka Paper Co. 0. Oklahoma Pub. Co., 7 Okl. ^20. 1 Oregon Ry. Co. r. Oregonian Ry, Co., 130 U. S. 1; Pa. R. R. Co. v. St. Louis, etc., R. R. Co., 118 U. S. 290. 2 Central Transportation Co. v. Pullman's Palace Car Co., 139 U. S.