lease; that the use of the words "successors or assigns" in a proviso attached to a statute making specific grants to a corporation does not necessarily imply that the corporation can transfer all its property and its franchises to another corporation, to be exercised by the latter; that a provision in a general act for the organization of corporations that a corporation organized under it may authorize its own dissolution and the disposition of its property thereafter, does not authorize such a corporation, not dissolving but continuing in existence, to dispose of all its corporate franchises and powers by lease; and that a provision in a general act for organization of corporations for the purpose of navigating streams, with power to construct railroads where portage is necessary, and that a corporation organized under it shall not lease such a railroad, does not imply that without such a restraint the corporation could make such a lease.42 Where the charter of a railroad company confers the right to transport passengers and freight, and gives the power to "farm out" the right of transportation, the company is thereby authorized to execute a valid lease of its property and franchises to another railroad company.43 Again, if a statute empowers ferries to be maintained and operated across certain streams a lease may be made, by virtue thereof, by a county to private individuals.44 § 468. Power to Alienate Franchises-Railroad Companies. The franchises of a railroad company cannot be alienated without the consent of the State which granted them. It is a state prerogative to put the administration of its franchises into such hands as it may choose and, therefore, the State must confer the right upon such a corporation to make a transfer of them.4 42 Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U. S. 1, 32 L. ed. 837, 9 Sup. Ct. 409. See $466, herein. 43 Hill v. Atlantic & North Carolina Rd. Co., 143 N. C. 539, 570. "State v. King County (Wash.), 69 Pac. 1106, under Sess. Laws 1899, p. 39. 45 State v. Morgan, 28 La. Ann. 482. See also Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 40 L. ed. § 469. Power to Alienate Franchises-Banks-Street Railway Companies-Telegraph Lines.-A bank holding its franchise under a special act is held to be within the rule prohibiting alienation of franchises without authority from the legislature.46 The rule also applies to a street railway company's franchises; 47 and to a right to construct and operate telephone or telegraph line.48 § 470. Power to Alienate Franchises-Water and Irrigation Companies.-In Kansas, corporations cannot transfer 849, 16 Sup. Ct. 714, 3 Am. & Eng. R. Cas. (N. S.) 525; Branch v. Jesup, 106 U. S. 468, 27 L. ed. 279, 1 Sup. Ct. 495; Southern Pac. R. Co. v. Esquibel (N. M.), 20 Pac. 109, 5 R. R. & Corp. L. J. 256. Examine Canada S. R. Co. v. Niagara Falls (Ch.), 22 Ont. Rep. 41. 46 Fietsam v. Hay, 122 Ill. 293, 13 N. E. 501. Compare New Hampshire Savings Bk. v. Rickey, 121 Fed. 956, 58 C. C. A. 194. "French v. Jones, 191 Mass. 522, 78 N. E. 118. Examine Prospect Park & Coney Island R. Co. v. Coney Island & B. R. Co., 144 N. Y. 152, 63 N. Y. St. Rep. 48, 39 N. E. 17,1 Am. & Eng. R. Cas. (N. S.) 222, 26 L. R. A. 610, case reverses 66 Hun, 366, 50 N. Y. St. Rep. 862, 21 N. Y. Supp. 1046, holding that franchise may be sold to rival company to one with which it is under contract to allow cars to run over its tracks. 48 Cumberland Teleph. & Teleg. Co. v. City of Evansville, 127 Fed. 187; United States v.. Western Union Teleg. Co. (C. C.), 50 Fed. 28. See Joyce on Electric Law (2d ed.), §§ 203 et seq. Grant of exclusive franchises or privileges by railroad company to telegraph company; extent of power. See United States v. Union Pacific R. Co. (and Western Union Teleg. Co.), 160 U. S. 1, 16 Sup. Ct. 190, 40 L. ed. 319, 6 Am. Elec. Cas. 697, rev'g 59 Fed. 813, 19 U. S. App. 531, aff'g 50 Fed. 28; Western Union Teleg. Co. v. Western & Atlantic Teleg. Co., 91 U. S. 283, 23 L. ed. 350,1 Am. Elec. Cas. 194; Mercantile Trust Co. v. Atlantic & Pacific R. Co., 63 Fed. 910; Pacific Postal Teleg. Cable Co. v. Western Union Teleg. Co., 50 Fed. 493; Western Union Teleg. Co. v. American Union Teleg. Co., 9 Biss. (C. C.) 72; Western Union Teleg. Co. v. Atlantic & Pacific Teleg. Co., 7 Biss. (C. C.) 367; Western Union Teleg. Co. v. National Teleg. Co., 22 Blachf. (C. C.) 108; Western Union Teleg. Co. v. American Union Teleg. Co., 65 Ga. 160, 38 Am. Rep. 781; St. Louis & C. R. Co. v. Central Teleg. Co., 173 Ill. 508, 51 N. E. 382; Union Trust Co. v. Atchison, Topeka & S. F. R. Co., 8 N. M. 327, 43 Pac. 701. Examine also Joyce on Electric Law (2d ed.), §§ 35, 191–193. Special franchise; electrical conductors on streets assigned to individual and by him to corporation; title not defective for that reason. Long Acre Electric Light & Power Co., In re, 101 N. Y. Supp. 450, 51 Misc. 407, aff'd 102 N. Y. Supp. 242, 117 App. Div. 80, also aff'd 188 N. Y. 361, 80 N. Y. Supp. 101. those franchises received from the State which confer power upon them to exist as artificial bodies, but those franchises denominated as secondary, which include the privileges granted to a water company, with the right to take tolls, etc., may by statute be lawfully alienated and encumbered.49 But where water company does not derive power from the legislature to transfer its franchises and other property, it does not obtain such power merely from a city's consent to alienate.50 An irrigating company, incorporated under the laws of a State, to construct and operate a canal for irrigation, waterworks and manufacturing purposes, has the power, with the assent of its stockholders, to sell and convey to another irrigating corporation its right of way, canal, personal and real property, if the same is done in good faith, and not for the purpose of defrauding or delaying creditors." 51 § 471. Power to Mortgage.-A corporation which is authorized to sell its franchises is empowered to mortgage them. Thus a statute which confers upon a corporation the right to take water from a river and to conduct it through canals, and the exclusive right to the hydraulic power and privileges created by the water and the right to use, rent or sell the same or any portion thereof, authorizes the corporation to mortgage such powers and privileges.52 So a grant by a municipal corporation to a railway company of a right of way through certain streets of a municipality, with the right to construct its railroad thereon and occupy them, in itself is a franchise which may be mortgaged and pass to the purchaser at a sale under foreclosure of the mortgage; and there is nothing in the laws of Louisiana which forbids such transfer of a franchise to use and occupy the streets of a municipality by a railroad corporation.53 In 1856 that State passed a general law authoriz 49 State v. Water Co., 61 Kan. 547, Canal Co., 40 Kan. 96, 19 Pac. 60 Pac. 337. 349. V. 50 New Albany Waterworks Louisville Banking Co., 122 Fed. 776, 58 C. C. A. 576. 51 State V. Western Irrigating 52 Williamette Mfg. Co. v. Bank of British Columbia, 119 U. S. 191, 30 L. ed. 384, 7 Sup. Ct. 187. 53 New Orleans, S. P. & L. R. R. ing railroad companies to mortgage their property and franchises. But until the passage of such act such franchises in that State could not be mortgaged. Otherwise that act would have been unnecessary.54 Again, it is "well settled that a mortgage of a railroad to be constructed and of its appurtenances to be acquired by the company chartered to build and operate such road, is valid." 55 Such a mortgage, as against the company and its privies, although given before the road is built, attaches itself thereto as fast as it is built, and to all property covered by its terms as fast as it comes into existence as property.56 § 472. Power to Make and Take a Lease-Railroad Companies-Natural Gas, Gas and Electric Companies.A lease by a railroad company of all its road, rolling stock and franchises for which no authority is given in its charter is ultra vires and void.57 And it is held that clear and specific authority is necessary to enable a railroad company to lease its property; otherwise such lease is void.58 Again, unless specially authorized by its charter, or aided by some other legislative action, a railroad company cannot by lease or other contract turn over to another company for a long period of time its road and all its appurtenances, the use of its franchises, and the exercise of its powers, nor can any other railroad company, without similar authority, make a contract to run and operate such road, property, and franchises of the first corporation. Such a contract is not among the ordinary powers of a railroad company, and is not to be inferred from the usual grant of powers in a railroad charter.59 So it is held in a case decided in Co. v. Delamore, 114 U. S. 501, 5 54 State v. Morgan, 28 La. Ann. 482. 55 Meyer v. Johnston, 53 Ala. 324, per Manning, J. 56 Galveston Railroad v. Cowdrey, 11 Wall. (78 U. S.) 459, 20 L. ed. 199. 57 Thomas v. Railroad Co., 101 U. S. 71, 25 L. ed. 950. 58 Van Steuben v. Central R. Co., 178 Pa. 367, 39 W. N. C. 217, 35 Atl. 992, 34 L. R. A. 577. See §§ 465467, herein. 50 Pennsylvania R. R. Co. v. St. Louis, A. & T. H. R. R. Co., 118 U. S. 290, 30 L. ed. 83, 6 Sup. Ct. 1094. See upon last point in text § 467, herein. 1886 that no authority is found in the statutes of Indiana for the lease of an entire railroad property and franchise for the period of ninety-nine years.60 It is also decided in Michigan that a part of a railroad company's right of way may be leased to a manufacturing concern where it expects to obtain business therefrom.61 And, under a Massachusetts decision, real property which a corporation is, under its charter, entitled to hold, may be leased for purposes of a business which the lessor could not legally enter into.62 Again, a railroad company has the right to rely upon decisions that authority to lease its road exists, as such decisions when made by the highest courts of the State constitute a part of the contract which cannot be impaired under the Constitution.63 The rule that precludes a railroad company without legislative authorization, by charter or other enactment, from leasing its entire plant for a long period of time, applies to a natural gas company; 64 and a lease cannot validly be made by a corporation of its franchise to furnish a city with gas and electricity.65 § 473. Illegal or Ultra Vires Lease-Ratification-Estoppel-Equity-Validating Statutes.-The fact that the legislature, after an ultra vires lease is made, passes a statute |