"franchise" used in this statute to hold it as meaning only the right to be a corporation. The word is generic, covering all the rights granted by the Legislature. As the greater power includes every less power which is part of it, the right to withdraw a franchise must authorize a withdrawal of any or every right or privilege which is a part of the franchise.

In Lathrop vs. Steadman, 13 Blatch. 142, Judge Shipman, speaking of this power of repeal, says: "The Legislature has the right to exercise this power summarily and at its will, and its action being a legislative and not a judicial act cannot be reviewed by the courts unless it should exercise its powers so wantonly and carelessly as to palpably violate the principles of natural justice, and in such a case a repeal, like other legislative acts which do thus palpably violate the principles of natural justice, may be reviewed by the courts."

While the State has this power, it cannot undo or vacate contracts or other legal acts which were legal when done. This question came up in People vs. O'Brien, 111 N. Y. 1, where it was held that the power to repeal the charter of a corporation cannot, upon any legal principle, include the power to repeal what is in its nature irrepealable, or to undo what has been done under power lawfully conferred. The court said, among other things: "The authorities seem to be uniform that the reservation of the right to repeal entitles the Legislature to vacate the corporate life and disable it from continuing corporate business," and quoted the language of Chief Justice Marshall in Fletcher vs. Peck, 6 Cranch, 135: "If an act be done under a law, a succeeding Legislature cannot undo it; the past cannot be recalled by the most absolute power; if conveyances have been made, those conveyances have vested legal estates; and if those estates are made to cease by a foreign authority, still that they originally vested is a fact, and cannot cease to be a fact. When, then, a law is in the nature of a contract, and absolute rights have vested under that contract, a repeal of the law cannot divest those rights." It would seem to be quite obvious that the power in the existing Legislature, by virtue of a reservation only, cannot be made the foundation of authority to do that which is expressly inhibited by the Constitution, or afford the basis of a claim to increased jurisdiction over the lives, liberty or property of citizens beyond the scope of express constitutional power.

Since the celebrated Dartmouth College case the doctrine is

firmly established that a grant of corporate powers, by the sovereign to an association of individuals for public use, constitutes a contract within the meaning of the Federal Constitution prohibiting State Legislatures from passing laws impairing its obligations.

The intimation, however, by Judge Story in that case, that the rule might be otherwise if the Legislature should reserve the power of amending or repealing it, has led to the adoption by the Legislatures of the various States of the practice of incorporating such reservations in Acts of incorporation. Whatever may be the effect of such reservations, it is immaterial whether they are embraced in the Act of incorporation or in general statutes or provisions of the Constitution. In either case they operate upon the contract according to the languge of the reservation.

It is obvious, therefore, that this reserved power does not in any sense constitute a condition of the grant, and cannot have effect as such, but is simply a power to put an end to the contract, with such effect upon the rights of the parties thereto as the law ascribes to it.

In speaking of this subject, Chief Justice Waite says, in the Sinking Fund cases, 99 U. S. 748: "That this power has a limit no one can doubt. All agree that it cannot be used to take away property already acquired under the operation of the charter, or to deprive the corporation of the fruits actually reduced to possession of contracts lawfully made. ** Whatever rules Congress might have prescribed in the original charter for the government of the corporation in the administration of its affairs, it retained the power to establish by amendment. In doing so, it cannot undo what has been already done, it cannot unmake contracts that have been already made, but it may provide for what shall be done in the future, and may direct what preparation shall be made for the due performance of contracts already entered into. Further on, in People vs. O'Brien, the court came to the conclusion that the section of the New York law under discussion is a proper statement of the rights of the parties where such a repeal has taken place. That section is as follows:

"The Legislature may at any time annul or dissolve any corporation formed under this Act, but such dissolution shall not take away or impair any remedy given against such corporation, its stockholders or officers, for any liability which shall have been previously incurred," and say this section does not impair any

remedy existing against the corporation, its directors or officers. This was the contract under which the dissolved corporation issued its stock, mortgaged its franchises, entered into traffic engagements and contracted debts. Creditors, contractors and stockholders had a right to rely upon the promise of the State that the annulment of the corporate charter should not affect the remedies existing in their favor against the corporation, and this promise is a contract protected by the provisions of the Federal Constitution. In the absence of any constitutional provision prescribing the effect of such repeal, it was competent for the Legislature to declare what that should be, and for the State to contract with reference to such a declaration."

In Georgia, however, our supreme court recently, on April 14th 1890, in the case of The Macon & Birmingham Railroad Company vs. Stamp, held the right of the State so to amend or destroy the charter is not in any degree abridged or affected by an executory contract between the company and a construction company, and between the latter and sub-contractors, touching the construction and equipment of the road. In so far as the amendment may render the performance of these contracts impossible, the impossibility will result from act of law, and performance to that extent will be excused. All parties contracting with the corporation must take notice of the conditions upon which it holds its franchises, and of its subjection to the legisla tive will.

In view of this decision, only the head-notes of which the writer has seen, all contracts in Georgia must be made subject to the repealing power of the State, but I do not think this applies to the case of an executed contract, whereby rights have become vested, nor could any repeal of the charter, which would violate these rights, have the effect to annul the corporate contracts so that these rights could not be enforced. Such action would be violative of the Federal Constitution, and therefore void, The decision seems to recognize a distinction between executory and executed contracts from the head-notes, and doubtless only permits the repealing power to destroy executory contracts.

It is well-settled that at common law, when a charter of a corporation is forfeited its contracts are extinguished and ended. No suit could be maintained thereon,as there was no one to sue. 11 Ga. 492. The realty reverted to the grantor or his heirs, and the chattels to the crown. But this is not the law now. Our Code,

section 1688, provides that upon the dissolution of a corporation for any cause its assets are a trust fund for the payment of i's debts and division of the surplus among stockholders, and a receiver may be appointed to carry out this purpose. See Bacon vs. Robertson, 18 Howard, 485.

It will, therefore, be seen that a dissolution of a corporation by legislative action neither detroys its property nor annuls its executed contracts. They stand pretty much in the same position, as those of a natural person do upon his death. The reservation, under the charter of the right to repeal it, allows the State to destroy its corporate life, and prevent it from continuing its corporate business; but personal and real property acquired during its lawful existence, and the rights of contract or choses in action so acquired, and which do not in their nature depend upon the powers conferred in the charter, are not destroyed. Upon the repeal of an Act of incorporation, all the property and rights of the corporation become vested in the directors then in office or such persons as have by law the management of the business of the corporation, in trust for the creditors and stockholders, unless the repealing law provides for the appointment of other persons, than the officers of corporation as such trustees.

II.

DISSOLUTION BY FORFEITURE.

A forfeiture is the result of a judicial investigation, and must be based upon some wilful violation of the essential conditions upon which the corporation was granted or from a misuser or non-user of its franchises; such forfeiture works a dissolution which dates from the judgment of a court of competent jurisdiction. Code, 1685. An approved form will be found in 19 Ga. Reports, 350.

This judgment of forfeiture must depend entirely upon a statute; there is no inherent power in a court of chancery to determine such a question.

A corporation being the creature of the Legislature, its general powers being derived from the government, the judicial department has no authority to interfere with the legislative, unless there is some special provision for this purpose.

The mode of enforcing forfeiture is thus stated in the case of The State vs. The Merchants' Insurance and Trust Company, 8

Humphries (Tennessee), 253, cited in Waite on Insolvent Corporrations, Section 339: "By the common law the forfeiture of a charter can be enforced in a court of law only, and the proceeding to repeal it is by a scire facias or an information in the nature of a writ of quo warranto. A scire facias is the proper remedy where there is a legal existing body capable of acting, but which had been guilty of an abuse of the power entrusted to it; a quo warranto where there is a body corporate de facto, which takes upon itself to act as a body corporate, but which, from some defect in its constitution cannot legally exercise the power it affects to use. But a court of chancery, unless especially empowered by statute, cannot decree a forfeiture, though it may hold trustees of a corporation accountable for an abuse of the trust." Where a statute provides a particular method of dissolving a corporation, that method must of course be pursued.

We have seen that a judgment of forfeiture must issue from a court of competent jurisdiction. This, in the State of Georgia, is the Superior court.

All corporations, whether public or private, were subject to visitation; in other words, to inspection, regulation and control by the tribunals recognized by the laws of the land.

Civil corporations being visited by the government itself through the medium of courts of justice, while the internal affairs of ecclesiastical and eleemosynary corporations are, in general, inspected and controlled by some private visitor, and this difference in the tribunals controlling corporations naturally results from a difference in their nature and objects. Civil corporations, which are those we have to deal with in these suggestions, whether public or private, being created for public use, are those which properly fall under the superintendency of that sovereign power whose duty it is to take care of the public inte rest; whereas corporations, whose object is a distribution of a private benefaction, may well find jealous guardians in the zeal or vanity of the founder, his heirs or appointees. (Angel & Ames on Corporations, 10 Edition, Section 684.)

In cases where there is no individual founder or donor, the Legislature, generally, are the visitors of all corporations founded by them for public purposes, and may direct judicial proceedings against them for abuse or neglects which at common law would cause a forfeiture of their charters. Ib.

In Georgia, however, our Supreme court has decided in the case