Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/454

 § 453.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. § 453. That a grant from a state is a contract within the a charter a purview of Article I. section 10 of the Federal OutHneof constitution was decided by Fletcher v. Peck; 1 that the doc- the charter of a corporation is a arrant and therefore trine. l ° a contract, was decided by Dartmouth College v. corporation is very great. The gov- ernment, however, holds another very important relation, namely, that of contract. It has loaned to the company twenty-seven million dollars, and granted it on certain terms many million acres." United States v. Union Pacific R. R. Co., 98 U. S. 569, 613. It is to be noticed, however, that the contractual rela- tions referred to in this extract arose from a loan by the government to the company. 1 6 Cranch, 87. " Is the power of the legislature competent to the an- nihilation of such title, and to the resumption of the property held ? The principle asserted is that one legislature is competent to repeal any act which a former legislature was competent to pass, and that one legislature cannot abridge the powers of a succeeding legislature. The cor- rectness of this principle, so far as affects general legislation, can never be controverted. But if an act be done under a law, a succeeding leg- islature cannot undo it. The past cannot be recalled by the most ab- solute power. Conveyances have been made, those conveyances have vested legal estates, and if those es- tates may be seized by the sovereign authority, still that they originally vested is a fact, and cannot cease to be a fact. " When, then, a law is in its na- ture a contract, when absolute rights have vested under that contract, a repeal of that law cannot divest those rights; and the act of annul- 434 ling them, if legitimate, is rendered so by a power applicable to the case of every individual in the commu- nity. . . . " What is a contract ? Is a grant a contract ? A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing; such was the law under which the conveyance was made by the governor. A contract executed is one in which the object of contract is performed; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was exe- cuted by the grant. A contract exe- cuted as well as executory contains obligations binding on the parties. A graut in its own nature amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is therefore always estopped by its own grant. Since then, in fact, a grant is a contract executed, the ob- ligation of which still continues, and since the constitution uses the gen- eral term 'contracts,' without distin- guishing between those which are executory and those which are exe- cuted, it must be construed to com- prehend the latter as well as the former. ... It would be strange if a contract to convey was secured by the constitution, while an abso- lute conveyance remained unpro- tected." Marshall, C. J., 6 Cranch, 135-7.