Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/452

 § 451.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. not to permit a similar corporation to establish itself near the former. One may well raise the question whether this implied con- tract not to alter the constitution of a corporation would be held to exist, did the matter arise as res nova in regard to a general enabling statute. If the right to repeal were not reserved, presumably, under the authority of past decisions, courts would hold that the statute could not be repealed or changed so as to affect the right of existing corporations to continue to carry on their business as under the statute. But would courts so hold in regard to a statute sanctioning limited partnerships ? Is there any implied contract between the state and a limited partnership any more than between the state and an ordinary firm ? No citizen by acting under a statute any more than by acting under a rule of common law acquires a right that the statute shall remain unrepealed so that he may always act under it and be protected by its terms. 1 And why should there be held to exist an implied contract between the state and an ordinary business corporation any more than between the state and a limited partnership? Still, who to-day is rash enough to hint that the decision in the Dartmouth College Case was based on the false analogy be- tween a grant of a franchise (i. e., the passage of a special law), and the grant of property? As Justice Davis said in The Binghamton Bridge : 2 " Courts to-day are estopped from questioning the doctrine of the Dartmouth College Case." § 451. That the constitution of a corporation is law is more apparent in respect of corporations formed under actsand 8 general enabling statutes, while the characteristics special f a contract appear more prominently where a spe- ctiarters. l l l ^ L cial charter is granted by the state to the corporators. 3 The differences between an enabling statute and a charter are, i See Munn v. Illinois, 94 U. S. 113, opinion of Waite, C. J. 3 A number of state constitutions prohibit tbe passage of special acts conferring corporate francbises. See Atkinson v. Marietta, etc., R. R. Co., 15 O. St. 21; School District v. In- surance Co., 103 U. S. 707. But it 432 is held such a prohibition does not prevent a legislature from extending by special act the duration of corpo- rate franchises. Colton v. Mississippi, etc., Boom Co., 22 Minn. 372; or from altering the charter of an existing corporation. Attorney-General v. North America Life Ins. Co., 82 N. Y. 172; St. Paul Fire, etc., Ins. Co.
 * 3 Wall. 51, 73.