Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/535

 chap, vrn.] CORPORATION AND STATE. [§ 504. charter of a corporation if the corporation misuses its powers or fails to begin active operations within ^Ich] 1 a i ll ~ a certain time, it has been held that the legislature ceediug . . . . ,, prerequi- may exercise its right without the interposition of a site to the judicial tribunal. 1 Undoubtedly, if the legislature iepea ' reserves the unconditional right to alter and repeal, it may exercise that right in its discretion; but when that right is conditioned on an abuse of corporate powers, it would seem to be little more than the ordinary right of the state to proceed by quo warranto. Accordingly, that the corporation should have an opportunity to be heard in its defence, and that some judicial tribunal should pass upon the question whether there has been an abuse of corporate powers, or a failure to exercise them, would seem prerequisite, 2 for the legislature is not the proper body to construe a contract between itself and a group of citizens. 3 § 504. The repeal of a general enabling act does not affect the capacitie 3 of corporations already formed under it, 4 unless the legislative intention to dissolve exist- ^peai ° fa ing corporations is clearly expressed in the repealing 1 Miners' Bank v. United States, 1 Greene (Iowa), 553. The power to repeal for abuse of corporate privileges is a different right from that of demanding a judicial sen- tence of forfeiture. After an abuse has occurred the legislature is in- vested with full power to repeal the charter, and the corporations hold their franchises from the state merely as tenants at will, in the same manner as if there had been an unconditional reservation of the right to repeal. Judicial proceed- ings taken against the corporation by the attorney-general, under which the corporation is compelled to rem- edy certain of its abuses, do not de- prive the state of its power of repeal for the abuse. A repealing statute will be presumed to have been passed on the existence of the fact on which its validity depends. Erie and N. E. R. R. Co. v. Casey, 26 Pa. St. 287 (decided by a bare majority). But the legislature is not the final judge as to whether the casus judicis, upon which is based its authority to re- peal, has accrued. Commonwealth v. Pittsburgh and C. R. R. Co., 58 Pa. St. 26; Erie and W. E. R. R. Co., v. Casey, 26 Pa. St. 287. 2 Mayor of Baltimore v. Pitts- burgh and Connellsville R. R. Co., 1 Abb. U. S. 9; accord, Flint, etc., Plankroad Co. v. Woodhull, 25 Mich. 99; compare Grand Gulf R. R. Co. v. State of Mississippi, 18 Miss. 428, and § 458. 3 Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray, 339; compare City of London v. Wood, 12 Mod. 669, 687. 4 United Hebrew Association v. Benshimol, 130 Mass. 325 ; Don- worth v. Coolbaugh, 5 Iowa. 300. 515