Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/460

 § 456.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. Vlll. part of the corpora- tion, the State ac- quires the right to en- force the fulfillment of the cor- porate du- ties. Abso- lute sov- ereignty. force individuals to apply their property without compensation to the building of a railroad, because such action would be against common right, 1 and because the Federal constitution forbids a state to take private property without due process of law. 2 Clearly, if the state were absolutely sovereign, it could acquire no rights or further powers over a citizen through contract, or through the assumption 1 "It may well be doubted whether the nature of society and of govern- ment does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found if the property of an individ- ual, fairly and honestly acquired, may be seized without compensa- tion?" Marshall, C. J., in Fletcher v. Peck, 6 Cranch, 135. "We enter- tain an high opinion of the legisla- tive authority; but we have never dreamt that Parliaments had any right to violate property." Burke, French Revolution. And Bracton said centuries before, " Oinnis nova constitutio futuris formam imponere debeat et non prseteritis." De Leg., 4 fol. 228a. " And it appears on our own books," says Coke, "that in many cases the common law will controul acts of Parliament, and sometimes adjudge them to be utterly void ; for when an act of Parliament is against common right and reason, or repugnant or impossible to be performed, the common law will controul it, and adjudge such act to be void." Bonham's Case, 8 Rep. 118a, in which case instances are cited where statutes were declared null by courts. See also Calvin's Case, 7 Rep. 14 a. " And what my Lord Coke says in Dr. Bonham's Case in his 8 Co. is far from an extravagancy, for it is a very reasonable and true saying that if an 440 act of Parliament should ordain that the same person should be party and judge, or, which is the same thing, judge in his own case, it would be a void act of Parliament." Holt, C. J., in City of London v. Wood, 12 Mod. 669, 687. "Even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself, for jura naturalia sunt im- mobilia, and they are leges legum." Day v. Savage, Hobart, 87. In the American system of gov- ernment there exists no absolute power. "The theory of our gov- ernments, state and national, is op- posed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of denned and limited powers. There are limitations on such power which grow out of the essential na- ture of all free governments. Im- plied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name." Loan Asso- ciation v. Topeka, 20 Wall. 655; ace. Parkersburg i Brown, 106 U. S. 487. Compare License Cases, 5 How. 588; Ablemanw. Booth, 21 How. 516; Tarble's Case, 13 Wall. 406; United States v. Cruikshank, 92 U. S. 542. 2 Amendment XIV.