Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/464

 § 459.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. is expressly provided in the charter of the corporation that un- less certain things are done by the corporation within a certain time, the franchises of the corporation shall cease and become forfeited, it has been held that the legislature may declare its franchises forfeited on failure by the corporation to perform within the time specified, and may grant them to another corporation. 1 Nevertheless, in accordance with the funda- mental principles of our system of government, while it is the province of the legislature to make laws, it is the province of the courts to say whether the laws have been observed or violated ; and accordingly it would seem proper that a judicial tribunal should determine whether or not that condition of fact exists which the legislature has declared shall forfeit the franchises of a corporation. 2 § 459. When a corporation is found guilty of acts which by statute are declared to be a cause of forfeiture of its franchises, a court has no discretion to refuse judg- ment of ouster therefrom; 3 but in other cases a court has discretion in the matter to refuse a judgment of ouster if in the opinion of the court the interests of the public do not call for it ; 4 for it is generally held that the state or the Grounds of forfeiture. is the proper court to determine the question of the forfeiture. Presi- dent, Managers, etc., v. Trenton City Bridge Co., 13 N. J. Eq. 46; Attor- ney-General v. Utica Ins. Co., 2 Johns. Ch. (N. Y.) 371. In absence of statute chancery has no jurisdic- tion to forfeit the franchise of a corporation. Chicago Mutual Life Ass'n v. Hunt, 127 111. 257. 1 Oakland R. R. Co. v. Oakland, etc., R. R. Co., 45 Cal. 365. See Mat- ter of Brooklyn, etc., R. R. Co., 75 1ST. Y. 335; Brooklyn Steam T. Co. v. Brooklyn, 78 N. Y. 524; Farnsworth v. Minnesota, etc., R. R. Co., 92 U. S. 49; Mobile & O. R. R. Co. v. State, 29 Ala. 573. To make the forfeiture clause self-executing, the language must be clear. New York & L. I. R. R. Co. in re, 148 N. Y. 540. Cf. §432. 444 2 See Flint, etc., Pk. Rd. Co. v. Woodhull, 25 Mich. 99. A charter provided that unless a certain road was begun and completed within specified periods "this corporation shall cease and this act shall be void." Held, this was not intended to de- clare a forfeiture but a cause of for- feiture, and that judicial action was necessary. Vermont & C. R. R. Co. v. Vermont Central R. R. Co., 34 Vt. 2. See Day v. Ogdensburgh, etc., R. R. Co., 107 N. Y. 129; People v. Los Angeles Ry. Co., 91 Cal. 338; Ohio Nat. B'k v. Construction Co., 17 D. C. App. Cas. 524. 3 State v. Building Association, 35 O. St. 258. 4 State v. Bhlg. Asso., 35 Ohio St. 258; State v. Essex Bk., 8 Vt. 489; State v. Railway & B. Co., 91 Iowa, 517. See People u. North Chicago