Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/469

 CHAP. VIII.] CORPORATION AND STATE. [§ ^2. into as to remain irrevocable by the state, although the state has reserved the general right to alter and repeal the enabling statute or charter of the corporation. 1 But ordinarily the only contract between the state and the corporation is the implied one that the state will not alter the corporate consti- tution. Of what law are these rights a manifestation ? The consti- tution of the United States, and especially its provisions that no state shall pass a law impairing the obligation of contracts, nor shall deprive any one of his property without due process of law. Accordingly, the power sanctioning the rights of the corporation against the state differs from that whereby the rights of the state against the corporation are enforced. 2 § 462. In what manner are the rights of the corporation against the state enforced? Here a peculiarity in this contract is encountered ; for these rights often ^rceabie. can be enforced only negatively as it were ; and this on account of the inability of private individuals or incorpo- rated bodies to sue a state or enforce a judgment against it. 3 as to duration. The Binghamton Bridge, 3 Wall. 51; Bridge Com- pany v. Hoboken Land and Improve- ment Co., 13 N. J. Eq. 81, affirmed under the name of Bridge Proprie- tors v. Hoboken Co., 1 Wall. 116. Compare, however, as to granting a special privilege to a corporation, Gordon v. Winchester Building Ass'n, 12 Bush (Ky.), 110. 1 See New Jersey v. Yard, 95 U. S. 104; and compare University v. People, 99 U. S. 309; Citizens Sav. Bank v. Oweusboro, 173 U. S. 63(5; Hancock, Comptroller, v. Singer M'f'g Co., 62 N. J. L. 289. 2 These two powers differ at least in their immediate source, the one being the power of the state, the other the power of the United States. But ultimately these two powers may become united; for, if the power of a state is insufficient, it will be supported by that of the United States; and the power of the 29 United States is but the power of the people of all the states. The states are part and parcel of a nation, of which the Federal government exercises some of the powers. Com- pare License Cases, 5 How. 588; Ableman v. Booth, 21 How. 516; Tarble's Case, 13 Wall. 406; United States i'. Cruikshank, 92 U. S. 542. 3 Where a state provides for a suit against itself in its own courts, a subsequent statute nullifying such provision cannot impair the obliga- tion of a contract, because there never was any power to enforce such suit in the court, and so the provision was no remedy in the legal sense of the term. Railroad Co. v. Tennessee, 101 U. S. 337 ; Railroad Co. v. Alabama, 101 U. S. 832; see Beers v. Arkansas, 20 How. 527. And one state cannot sue another state in the United States Supreme Court when the former is merely the assignee, for the purposes of bring- 449