Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/442

 § 439.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. tion of a corporation it will be necessary, in order to analyze the relations between the state and the corporation, to deter- mine in what respect this constitution, besides being law, is to be regarded as a contract. To this determination accurate notions of law and contract are prerequisite. § 439. " Every law," says Austin ' " or rule is a command. .... Or rather laws or rules properlv so called are Austin's i i 4/ analysis of a species of commands." Analyzing the nature of a command, he proceeds : " If you express or inti- mate a wish that I shall do or forbear to do some act, and if you will visit me with some evil in case I comply not with your wish, the expression or intimation of your wish is a com- mand. . . . The ideas then comprehended by the term com- mand are the following: 1. A wish or desire conceived by a rational being that another rational being shall do or forbear ; 2. An evil to proceed from the former and to be incurred by the latter, in case the latter comply not with the wish ; 3. An expression or intimation of the wish by words or other signs." Then, continues Austin, when a command " obliges generally to acts or forbearances of a class, a command is a law or rule. .... A law properly so called is therefore a command which obliges a person or persons, and as distinguished from a par- ticular or occasional command, obliges generally to acts or for- bearances of a class. . . . Laws and other commands are said to proceed from superiors, and to bind or oblige inferiors, .... the term superiority here signifies might." In another part of the same work, Austin, analyzing the na- ture of sovereignty, says: "Every positive law, or every law simply and strictly so called, is set by a sovereign person or a sovereign body of persons, to the member or members of the independent political society wherein that person or body is sovereign or supreme. . . . The superiority which is styled sov- ereignty, and the independent political society which sover- eignty implies, is distinguished from other superiority, and from other society by the following marks or characters : 1. The bulk of the given society are in the habit of obedience or sub- modifying and controlling power of legislation as would be the contracts of private parties." Flint, etc., Plank 422 Road Co. v. Woodhull, 25 Mich. 99, 101, per Cooley, J. 1 Province of Jurisprudence. Lec- i ture I.