7i8 HARVARD LAW REVIEW state in regard to a corporation with a mandatory charter is that it cannot compel operation at a loss, thereby depriving the corporation of its property for public use without compensation.* The charter of incorporation which is in general terms, being neither clearly mandatory nor clearly permissive, is perhaps the commonest type. Following the well-established rule of construction that a charter from the state is construed most strongly against the grantee,^ courts, where public necessity is involved, tend to hold such charters mandatory, thereby preventing withdrawal from service except with consent of the state.io The case of the clearly permissive charter seldom arises. The deci- sion in the Dartmouth College case ^^ has led to the custom of reserv- ing a power to the legislature to alter charters of incorporation at will,^* such power being reserved by constitutional provision,^' by general Caster v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544 (1915); Rowland v. Saline River Railway Co., 119 Ark. 239, 177 S. W. 896 (1915); Brownell v. Old Colony Rail- road, 164 Mass. 29, 41 N. E. 107 (189s); Savannah & Ogeechee Canal Co. v. Shuman, 91 Ga. 400, 17 S. E. 937 (1893). See Columbus R. Power & Light Co. v. Columbus, 253 Fed. 499, 505 (1918); 26 Harv. L. Rev. 659.
- "The right of the, state to regulate pubUc carriers in the interest of the public is
very great. But that great power does not warrant an unreasonable interference with the right of management or the taking of the carrier's property without compensa- tion." Chicago, M. & St. P. Railroad Co. v. Wisconsin, 238 U. S. 491, 501 (1915). State ex rel. Caster v. Postal Telegraph Co., supra, note 7; Rowland v. Saline River Railway Co., supra, note 7. ' Cleveland Electric Railway Co. v. Cleveland, 204 U. S. 116 (1907). 2 Lewis' Sutherland, Statutory Construction, 2 ed., §§ 554-57. 1" Under a franchise giving "the right, power, and authority" to construct, main- tain and operate a line of electric railway, the court held that the railway could not, against the will of the state, abandon the enterprise if to do so would work a prejudice to the public interest. Day v. Tacoma Railway & Power Co., 80 Wash. 161, 141 Pac. 347 (1914). Colorado & S. Railway Co. v. State R. Commission, 54 Colo. 64, 129 Pac. 506 (1912); Union Pacific R. R. Co. v. Hall, 91 U. S. 343 (1875). 26 Harv. L. Rev. 659- But the courts construe general charters to be mandatory only " to meet the public wants and exigencies. If there is not sufficient traffic over a particular line of road to pay for the expense of running trains this is sufficient evidence that the pubUc do not require it to be kept in operation; and in such case the company may cease operating the road unless this be contrary to the express terms of its charter." Morawetz, Private Corporations, 2 ed., § ii 19. Central Bank & Trust Corporation v. Cleveland, 252 Fed. 530 (1918); State ex rel. v. Dodge City, M. & T. R. Co., 53 Kan. 329, 36 Pac. 755 (1894); State D. Old Colony Trust Co., 131 C. C. A. 581, 215 Fed. 307 (1914); Moore i-.^ewisburg & R. E. R. Co., 80 W. Va. 653, 93 S. E. 762 (1917). That a public service corporation cannot be compelled to do the impossible is strikingly brought out in Public Service Commission v. International Ry. Co., 224 N. Y. 631, 120 N. E. 727 (1918). Street railway employees were on a strike demanding a retroactive scale of wages which the company could not pay through lack of funds. The court held it error to require the railway to operate cars within two days because to do so would compel the company to take back the striking employees. In Middlesex R. R. Co. v. Boston & Chelsea R. R. Co., 115 Mass. 347 (1874), the court held it ultra vires for a horse-raibroad corporation to disable itself by selling in the absence of legislative authority. 11 4 Wheat. (U. S.) 518 (1819). 12 See Albany N. R. R. Co. v. Brownell, 24 N. Y. 345, 351 (1862); Supreme Council C. K. A. V. Fenwick, 169 Ky. 269, 277, 183 S. W. 906, 909 (1916). " Ramapo Water Co. v. New York, 236 U. S. 579 (1915); Jackson v. Walsh, 75 Md. 304, 23 Atl. 778 (1892). i
