Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/475

 CHAP. VIII.] CORPORATION AND STATE. [§ 466. self. 1 Consequently, the power to alter the rights of a corpora- tion through the exercise of the right of eminent domain or the police power, and to take its property for public purposes, can never be surrendered by the legislature ; any law or charter purporting to surrender it would in that respect be void. There- fore, taking the property of a corporation by the exercise of the power of eminent domain or of the police power can never im- pair the obligation of a contract, as these powers must in all cases be held to have been reserved to the legislature. 2 § 4:66. The legislature of the state, however, as before re- marked, is not the state, and although the legislature cannot surrender the eminent domain or the police power of the state, it does not follow that the ultimate power of the state cannot do so. This ultimate power exists in a majority of the people of the state, and at first sight it would seem com- petent for them to do any political act which the Federal constitution does not forbid the states to do. Accordingly, would it not be competent for the people by direct vote to surrender the right of eminent domain as to the property of any given corporation ? If so, and such corporation accepted a charter with such provision in it, would not that acceptance create a contract the obligation of which would be impaired by the exercise as to any property of that corporation of the power of eminent domain % These are questions of theoreti- cal interest mainly. No partial surrender, it is thought, of its right to exercise its eminent domain has ever been made by a state, and such a surrender would never be implied. "Whether the courts would hold such a surrender to be a valid contract, and as such within the protection of the Federal 1 " When the existence of a par- ticular power in the government is recognized on the ground of neces- sity, no delegation of the legislative power by the people can be held to vest authority in the department which holds it in trust to bargain away such power or to so tie up the hands of the government as to pre- clude its repeated exercise as often and under such circumstances as the needs of the government may re- quire." Cooley, Cons. Lim., p. 525. 2 See Twenty-second Street, In re, 102 Pa. St. 10S; Philadelphia Pas- senger Ry. Co.'s Appeal, 102 Pa. St. 123. Chicago, etc., Ry. Co. v. Ne- braska, 170 U. S. 57, holding that an ordinance requiring the railroad to repair a viaduct did not violate any contract between the state and the company. See, also, Laclede Gas Light Co. v. Murphy, 170 U. S. 78. 455