St. Paul daily globe., 1895-10-21
A DISTINCTION OVERLOOKED.

10 lue ldy I1ldH, IlOl NeIS6o III llC
law of corporations, whose knowl-
edge of those fictions Of humanity is
historically derived, it seems as if
the courts, in following the analogy
between them and individuals in
cases involving their rights or pow
ers, sometimes lose sight of the one
point of difference that is of the
greatest Importance to the public.
That point is this: That, while men
created states to serve them, states
created corporations to serve men.
Originally their franchises were
gifts of the king, sharing OF his
prerogative, granted in considera-
ton of some return advantage to the
king, who, in those days, was the
public. The state replaces the king
as donor, but the reason remains.
The state creates or permits the Gre
alton of corporations that its inter-
ests, the welfare of the public, may
be better served. This is especially
true of those corporations eXercis-
ing some of the powers of sovereign
ty, such as eminent domain.
Underlying the state, its creator,
are the men within it's boundaries,
constituting the great public. The
state is not the sovereign, with su-
preme power to vest or diveSt rights
of individuals, or to say what are
and what are not the rights and in
terests of the public. Courts have
always recognized this, even where
the people had not put restrictions
on the powers of their representa-
tives in the organic law of the state.
Courts have measured acts of legiS-
latures by the reserved rights
of men, not asserted in con-
stitutions; and held acts void
because they were against public
policy. They have applied the same
test to the acts of corporate bodies,
and, for the same reason, held them
ultra wires. No state, then, it would
seem to the plain layman, taking
counsel Of his reason and his COM
created by it with rights or powers
under which acts can be committed
that are hostile to the interests of the
public. Such grant would be be-
yond the constitutional power of
the representative of the people
composing the state. By the same
token the corporation could not take
such powers, even should a states
representatives grant them A cor
poration is not capable of taking
powers other than such as will serve
to carry into effect the exact pur-
poses of it's creation; and certainly
powers which, If exercised, would in
jure the public do not fall within the
definition. Any act of a legislature
attempting to convey such powers
would, itself, be an act against pub
lie policy.
When the granger agita ton be-
gan and state legislatures passed
laws reducing freight and passenger
rates, the railways argued that they
had, in their charters, permitting
them to collect charges for such
service, vested rights Of contract
which the states We're inhibited, by
the federal and their own constitu-
tions, from impairing. This conten-
ton was overruIed, because a state
could not thus use it's powers or
delegate them to be used against
the public interests. What is pub
lie policy" against which acts of
legislatures are powerless, is for the
most part the unwritten law to be
found in the decisions of courts.
! of which the granger cases are Illus
trations. But it is competent for
legislature to specify acts that vio-
late public policy, sometimes in ex-
ercise of the states police powers.
and sometimes simply declarative of
a natural or a common law. AS there
can be no vested and inyiolabJe
right to commit acts prejudbcial to