The opinion
Mr. Justice Carter, dissenting:
I do not agree to the doctrine announced in the decision of this case, that a corporation may not be estopped from pleading- its own lack of corporate power. As I understand the decisions, it has long been the settled doctrine of this court that where the contract has been wholly executed and the corporation has received the benefit of it, it will be estopped from setting- up in defense of payment its own lack of power, under its charter, to enter into the contract, where the contract is not one either malum in se or malum prohibitum. I do not understand that the application of the doctrine of estoppel is confined to those cases where the contract is within the powers of the corporation, but only beyond the mere authority of its officers or agents. The doctrine of estoppel does not rest upon the principle of agency that there may be a ratification of the unauthorized acts of agents. It has been held, not only by this court but by many others, that in many cases the question of ultra vires can only be raised in a direct proceeding by the State to oust the corporation of its assumed and usurped powers. Bradley v. Ballard, 55 Ill. 413 ; Kadish v. Garden City Building Ass. 151 id. 531 ; McNulta v. Corn Belt Bank, 164 id. 427 ; Eckman v. Chicago, Burlington and Quincy Railroad Co. 169 id. 312; Darst v. Gale, 83 id. 136.