Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/474

 § 465.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. road corporations shall not be created by special charter, a special charter, if granted by the state legislature, will be void, and the corporation will acquire no rights therefrom. 1 It was said that the power of the state legislature is restricted by the state constitution. The phrase seems proper, for, un- like the constitution of the United States, state constitutions are restrictive or regulative, rather than enabling in their gen- eral nature. 2 Some special power or capacity of action may be granted to the legislature by the state constitution ; but ordi- narily legislatures are held to possess all the powers of the state except as restricted by the state constitution or by certain doc- trines of constitutional law which may now be considered. § 465. There are certain powers necessary to the welfare, if not to the existence, of the state as a self-govern- ing community, and to justify the doctrine that these powers override all private rights, one need not look beyond the maxim, Salus populi suprema lex. The powers themselves fall under the general heads of eminent domain and what is loosely called the " police power " of the stated It is a well-known doctrine of constitutional law that these powers cannot be granted away or abridged by one legislature so as in any way to bind its successors or even it- Otker re- strictions on legis- lative powers. ley Water Works v. Schottler, 110 U. S. 347, 352 ; Delaware R. R. Co. v. Tharp, 5 Har. (Del.) 454; State v. Person, 32 N. J. L. 134; Griffin v. Kentucky Ins. Co., 3 Bush (Ky.), 592; so when the reservation is con- tained in some statute of general ap- plication. State v. Commissioner of Railroad Taxation, 37 N. J. L. 228. 1 See Ames v. Lake Superior and Mississippi R. R. Co., 21 Minn. 241. 2 See Davis v. State, 68 Ala. 58; Dorman v. State, 34 Ala. 216, 236; Lynn v. Polk, 21 Am. Law Reg. N. S. 321, 326; People v. Draper, 15 N. Y. 532; Thorpe v. Rutland and Burl- ington R. R. Co., 27 Vt. 140; Sawyer v. City of Alton, 4 111. 127; Winch v. Tobin, 107 111. 212; Concord R. R. Co. v. Greeley, 17 N. H. 47; State v. 454 Nashville R. R. Co., 12 Lea (Tenn.), 583. Still the words of Judge Story in a dissenting opinion are worthy of attention. " But the legislature of Massachusetts is .... in no just sense the sovereign of the state. The sovereignty belongs to the peo- ple of the state in their original char- acter as an independent community; and the legislature possesses those attributes of sovereignty, and those only which have been delegated to it by the people of the state under its constitution." Charles River Bridge v. Warren Bridge, 11 Pet. 644. 3 A discussion of the extent of these powers comes properly in a subsequent part of this chapter. §§ 470 et seq.