Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/468

 § 461.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. tions may be precedent or subsequent, and like other condi- tions may be released by the power granting, or a new grant may be made free from any limitation or condition by the same power. In accordance with well-settled rules, the intent to waive or release conditions, or to make a new grant, must be expressly declared or plainly to be inferred from some act of the granting power." ' § 461. On the other hand, what are the rights of the cor- poration against the state, occasioned by the con- tract between them ? In brief, that the state shall pass no law changing the legal effect of acts in respect of the corporate enterprise ; i. e., that the state shall not materially alter the constitution of the corporation (unless it has reserved the right to do so) except in the exercise of powers which the state cannot alienate or restrict itself in the exercise of. To be sure, the corporation may have other rights against the state occasioned by contract, if the state makes any special contract with it ; as for instance that the corporate property shall be taxed only at a certain rate. 2 And this special contract may be so entered Rights of the corpo- ration against the state aris- ing from the con- tract. statute declares how corporate fran- chises shall be forfeited, this super- sedes the common law mode. Green v. St. Albaus Trust Co., 57 Vt. 340. As to necessary averments in the pleadings, see Territory v. Virginia Road Co., 2 Montana, 90; Chicago City Ry. Co. ». People, 73 111. 541; Attorney-General v. Chicago, etc., R. R. Co., 112 111. 520. When to a g?to warranto a charter regular on its face is pleaded, it is competent for the relator to show by way of replication, that the charter has been forfeited by the act of the defendant, or that the charter does not confer upon the defendant the particular franchise in dispute. State of Ohio v. Pennsyl- vania and Ohio Canal Co., 23 Ohio St. 121. Compare State v. Cincin- nati, 2:5 Ohio St. 445. In proceed- ings for dissolution of a railroad company and the forfeiture of its franchises, one who has taken a 448 lease of a portion of its road for the term of its corporate existence, should be made a party (under the Code of Civil Procedure). People v. Albany and Vermont R. R. Co., 77 N. Y. 232. 1 State v. Godwiusville, etc., Road Co., 44 N. J. L. 496, 499, opinion of Ct. per Magie, J. As to effect of forfeiture of franchises, see §§ 437, 504. 2 See §§ 488-491. So a special monopoly may be granted in such a way as to constitute a contract be- tween the corporation and the state; e. y., an enactment by a state in incorporating a company to build a toll-bridge, that it should not be lawful for any person to erect any bridge within two miles of the said bridge, is an inviolable contract between the corporation and the state; and this though the charter of the corporation is without limit